Health Care Complaints Commission v Catt (No 2) [2024] NSWCATOD 28

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Catt (No 2) [2024] NSWCATOD 28 Hearing dates: 8 March 2024 Date of orders: 13 March 2024 Decision date: 13 March 2024 Jurisdiction: Occupational Division Before: The Hon M Le Poer Trench ADCJ, Principal Member Decision: The Respondent is to pay the costs of the HCCC in this proceeding as they may agree or failing agreement, as assessed. Catchwords: OCCUPATIONS — psychology practitioners — costs Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: Health Care Complaints Commission v Catt [2024] NSWCATOD 11 Health Care Complaints Commission v Morsingh (No 2) [2023] NSWCATOD 183 Texts Cited: Nil Category: Costs Parties: Health Care Complaints Commission (Applicant) Julie Ann Catt (Respondent) Representation: Counsel: S J Maybury (Applicant) M E Hall (Respondent)

Solicitors: J Lee (Health Care Complaints Commission) (Applicant) Gardner Legal & Regulatory (Respondent) File Number(s): 2022/00313397 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the name of the patient referred to as Patient A, in the Complaint forming party of the Application in this matter, is prohibited.

REASONS FOR DECISION

Background and Submissions 1. On 20 December 2023 the Tribunal published its judgment in the principal proceeding (see Health Care Complaints Commission v Catt [2024] NSWCATOD 11). There remained a determination in relation to the costs application of the Health Care Complaints Commission (HCCC). 2. One of the orders made on 20 December 2023 was the following: "The practitioner is to provide her submission, to the Tribunal and to the HCCC in relation to the application of the HCCC that the Respondent pay its' costs of the proceeding, within 14 days of the date of publication of this judgment. The HCCC is to provide the Tribunal and the Respondent with its' reply to that submission with 14 days of receipt of the Respondents submission." 1. The parties were subsequently given an extension of the time for the provision of their submission. 2. The Respondent provided a comprehensive, yet concise, written submission. She submits that the Tribunal should, in the special circumstances of this case, dismiss the HCCC's application for the Respondent to pay its costs. Further the Respondent seeks an order that the HCCC pay 25% of her costs of the hearing. 3. The circumstance which the Respondent submits supports her application is the making of an offer to contain the hearing time, contained in a letter written by her solicitor to the HCCC and dated 28 September 2023. That letter followed the first two days of the hearing, namely 14 and 15 June 2023. The letter is attached to the submission of the Respondent and is marked as Annexure A. For the purpose of this determination that letter is admitted to evidence. 4. The letter addresses a number of matters. It refers to the evidence and presentation of the principal witness for the HCCC (Patient A) at the hearing on the first two days of the hearing. It refers to the late provision of emails which had been called for by the HCCC following the first two days. It calls on the HCCC to withdraw Particulars 6(b) and 6(e) to Complaint One. The Respondent relied upon the additional emails provided by her, following the first two days of hearing, to support her contention that her defence of the content of those Particulars, would be successful. 5. The letter addresses the reliability of the evidence of Patient A. It speaks of the further cross-examination of that witness in the hearing to be continued in October 2023. It includes the following: "29. The remaining matters in dispute in these proceedings are serious ones. They must be proved to the Briginshaw standard, and they rely entirely on (Patient A's) evidence. There is no other evidence before the Tribunal that corroborates those allegations." 1. The letter further addressed the presentation of Patient A when she gave her oral evidence during the first day of the hearing. The letter set out the following in relation to the further hearing of the matter and the cross-examination of Patient A: "31. Our client does not want to see (Patient A) be forced to be cross-examined again. 32. Our client is deeply concerned and distressed about what she witnessed in the initial hearing in this matter where (Patient A) gave evidence. … 34. While our instructions remain that our counsel should treat (Patient A) as gently as possible to avoid further harm, our client cannot admit to things that did not occur – … 35. Our client's counsel therefore has no option but to put other matters to (Patient A) in the witness box… 36. Those will not be easy matters for (Patient A) to deal with and will likely cause her distress. … 40. It is the HCCC's maintenance of a case on the Disputed Particulars that compels (Patient A's) testimony which is exposing (Patient A) to such an ordeal." 1. The letter then urges the HCCC to reconsider if it is necessary to further require Patient A to give oral evidence. The Respondent contended the further cross-examination of Patient A will cause further harm, "and potentially substantial harm". She contended there was little realistic chance of the Tribunal accepting the evidence of Patient A where it was not corroborated. She contended the HCCC's position "at the last hearing is that the Disputed Particulars will have no real impact on its position as to how to protect the public." The Respondent put that "the most likely outcome is that our client successfully defends the further allegations and where our client would then be entitled to seek her costs from the HCCC in defending those allegations." 2. The letter of 28 September 2023 concludes with the following: "Conclusion 46. It is simply not necessary, nor appropriate, for Patient A to be put through the ordeal of giving evidence again. 47. Our client has admitted her conduct from the commencement of the HCCC's investigation, and that her conduct is in breach of the Code. Our client can be appropriately sanctioned on the basis of those matters. 48. The most appropriate step forward is for the parties to agree to facts on the basis of our client's admissions to date, and our client proposes that the factual dispute in this matter be resolved on that basis. 49. We would be grateful for the HCCC's Response to that proposal by no later than 4 pm, 9 October 2023. 50. Should the HCCC decline that invitation, this letter may be submitted to the Tribunal on the question of costs in due course." 1. Earlier in the subject letter the Respondent had put: "We submit that the most appropriate way forward would be through the submission of a Statement of Agreed Facts, and then proceeding to a hearing on sanction alone. That would save substantial time and money for both parties, and greatly lessen, the distress to Patient A from being cross-examined." 2. Also annexed to the submission of the Respondent is an email from the HCCC to the Respondent's solicitor dated 11 October 2023. That email, in response to the letter of the Respondent dated 28 September 2023 (specified above), asked for clarification in relation to the following: "1. If the HCCC were to agree to withdraw the Disputed Particulars, and therefore not rely on the corresponding paragraphs in the complainant's statement, would your client agree to the remainder of the complainant's statement remaining before the Tribunal (save for the paragraphs that have already been struck)? 2. The HCCC would still require your client for cross-examination – is that also contemplated by your proposal?" 1. The Respondent answered the email, above referred to, in a letter dated 12 October 2023. In that response, the following appeared: "3. The offer, your correspondence refers to, was made with the understanding that, if accepted, it would, consequently, mean, the hearing would progress as follows: 3.1. The disputed particulars no longer be pressed in the HCCC's application… 3.2. The HCCC withdraw any reliance on Patient A's testimony (to the extent, it has already been read as evidence), and no further cross-examination of Patient A occur. The transcript of Patient A's examination that occurred, previously, would not be relied upon by either party, and would not form evidence before the Tribunal. 3.3. The Practitioner withdraw (to the extent already in evidence), and not put into evidence (to the extent, anything remains) any statements, affidavits, or responses that were solely in response to Patient A's statement, but would continue to put into evidence the balance of her statements, affidavits, and responses… 3.4. The HCCC be permitted to cross-examine our client (and our clients council be permitted to cross-examine Professor Keogh, to the extent that such cross-examination is necessary, if the Disputed Particulars are no longer pressed)." 1. Also included below paragraph 3.1., set out above, was a proposal about the amendment of the HCCC complaint document. 2. The letter of 12 October 2023 was responded to by the HCCC by email dated 13 October 2023. There the HCCC advised that the proposal as outlined in the Respondent's two letters, was rejected and the HCCC advised the hearing will proceed as previously planned. The email advised: "At this stage we anticipate Patient A will be ready to recommence cross-examination on the morning of the 23rd." 3. The Respondent referred the Tribunal to the recent decision in Health Care Complaints Commission v Morsingh (No 2) [2023] NSWCATOD 183 [3]–[10] ("Morsingh (No 2)") where she submitted "relevant legal principles were recently considered." Those paragraphs are here set out and the Tribunal adopts the statement as relevant legal principle for this determination. "Legal principles 3 The Tribunal's power to award costs in these kinds of proceedings is set out in Clause 13 to Schedule 5 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. (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. 4 This provision gives the Tribunal a discretionary power to make a costs order: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]. The discretion must be exercised on a principled and judicial basis. Costs are compensatory for the successful party in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [44]. 5 The general rule is that costs follow the "event" unless justice requires a different approach: Furber v Stacey [2005] NSWCA 242. The question as to who is the successful party "in the event" is not always straight forward. In any particular case there may be a number of events: Galati v Deans (No 3) [2018] NSWSC 1861 at [18]. Ward CJ in Eq went on at [19] to suggest a "helpful approach" to identifying the "event": As I have noted in other cases, a helpful approach to that question is that which was suggested by the English Court of Appeal in Roache v News Group Newspapers Ltd [1998] E.M.L.R. 161 at 168-169. There, the question as to who was to be seen as the successful party "in the event" was posed as being a question as to "who, as a matter of substance and reality, has won? Has the plaintiff won anything of value which he could not have won without fighting the action through to a finish? Has the defendant substantially denied the plaintiff the prize which the plaintiff fought the action to win?" 6 While the event may extend to any disputed question of fact or law, the generally accepted approach is that the event is the event of the claim. The claim in this case is two complaints: that Mr Morsingh is guilty of unsatisfactory professional conduct and that he is guilty of professional misconduct. Generally, a successful party should be awarded the whole costs of the proceedings, including the costs relating to issues on which it has failed: Windsurfing International Inc v Petit (1987) AIPC 90-441 at 37,861-37,862. 7 However, where a successful party has failed on issues of substance, especially where those issues have taken a substantial proportion of the hearing time, the Tribunal may depart from the general rule: James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [31] – [36]. 8 In Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [49] – [50] Basten JA identified two factors, relevant in this case, which militate against the successful party (assuming that is the Commission) recovering all its costs. The first factor is where the Commission is successful in obtaining findings of unsatisfactory professional conduct, but not professional misconduct. In that case, Basten JA held at [49] that, in the circumstances of that case: 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. 9 The second factor is where the Commission fails to establish each of the particulars pleaded. Basten JA held at [50] that, in the circumstances of that case: 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. 10 The onus is on the unsuccessful party to satisfy the Tribunal that it should not apply the general rule that costs follow the "event": Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111 at [10]." 1. The submission of the Respondent thereafter, contained an assertion that "most time (and cost) in the proceeding was spent on the issues of disputed conduct." The Tribunal understands that to be a reference only to that part of the hearing post 28 September 2023 (the date of the letter referred to earlier). 2. The Respondent submits that any continued cross-examination of the Respondent, on the contested facts, did not and could not add to the determination by the Tribunal of an appropriate protective order in the circumstance where the Respondent had agreed she was guilty of both unsatisfactory professional conduct and professional misconduct, as defined by the Health Practitioner Regulation National Law ("National Law"). As will be addressed later in these reasons, that submission is not accepted by the Tribunal. 3. The Respondent submitted that she had been successful in the proceeding by the avoidance of a cancellation and prohibition period which was sought by the HCCC. The Respondent also submitted she was successful in "the ordering of a shorter suspension period, as the appropriate protective order (the concept of a shorter suspension period was expressly raised by the respondent at hearing as an appropriate protective order, in the alternative from her primary submission). That is, the respondent is the overall successful party, considering the outcome of the judgement, both in relation to the disputed particulars of Complaint One and the appropriate protective order." 4. Some of the submission of the Respondent addresses matters of the quantum of a costs order which might be awarded rather than the making of the costs order itself. 5. The Respondent submitted that had there not been a cross-examination of the Respondent on the disputed Particulars, the four-day hearing would have been one day shorter. She also submitted a disproportionate portion of the parties' written submissions were dedicated to the disputed Particulars. 6. The Respondent submitted "It is appropriate for the costs orders to reflect the success and failure of the parties on the issues: Chatoor v Health Care Complaints Commission [2020] NSWCA 111 at [62] (Macfarlan JA) and [76] (Emmett AJA)." 7. The Respondent submitted that she should be awarded a costs order which requires the HCCC to pay 25% of her costs. Without precisely saying so, the inference is that the HCCC's application for its costs to be paid, should be dismissed. 8. The HCCC provided its submission on the costs application as required. In that document the HCCC set out its submission on applicable legal principles. It accepted that the decision in Health Care Complaints Commission v Morsingh (No 2), as cited in the submission of the Respondent, was appropriate authority. It submitted that the following matters can be discerned from that decision: "(a) The generally accepted approach is that the 'event' is the claim, which in a case such as the present is the complaints of unsatisfactory professional conduct and professional misconduct – Morsingh (No 2) at [6]; (b) Generally a successful party should be awarded the whole costs of the proceedings, including the costs relating to issues on which it has failed - Morsingh (No 2) at [6]; and (c) Where a successful party has failed on issues of substance and those issues have taken a substantial proportion of the hearing time, the Tribunal may depart from the general rule - Morsingh (No 2) at [7]." 1. The HCCC submitted that the decision in Morsingh (No 2) can be distinguished on its facts from the current case. It submitted that in that case: "(a) The HCCC had failed completely in establishing professional misconduct; and (b) The HCC had failed to establish 18 contested particulars." 1. The HCCC submitted, respectfully, that the Respondent's submission, "turns, in part, on a misapprehension as to the proper conduct of proceedings of this nature. It also appears to proceed on a misapprehension as to the outcome of the proceedings." 2. The HCCC points out that on the first day of the hearing the Respondent conceded, she was guilty of professional misconduct. However, as submitted by the HCCC, the Tribunal is not bound to accept such concessions, and must determine the matter for itself. Further, the HCCC submits that the conduct of the Respondent at the time relevant to the complaint, is not the end of an inquiry in relation to the Respondent, and the conduct and fitness of the Respondent, following the alleged misconduct and at the date of the hearing, is essential to a proper exercise of the Tribunal's discretion regarding the making of protective orders. 3. The HCCC submitted it was successful in obtaining findings of both unsatisfactory professional conduct, and professional misconduct, by the Tribunal. The proceedings needed to be heard by the tribunal for such an outcome to be made. 4. Further, the HCCC submitted that in the hearing, the Respondent sought to downplay her conduct. She thought the appropriate outcome, after all the admissions were made, and all the evidence was heard, was that she should be subjected to a fine and a reprimand only. It submitted, that, without careful cross-examination by the HCCC, the Tribunal would never have had the capacity to determine that there were some topics covered in her evidence, which "defied credibility" as it did at paragraph [207]. 5. The fact that the Tribunal made an order for suspension of the Respondent's registration rather than the cancellation of same, the HCCC submits, is not a basis upon which to refuse it's cost application. This is not a case where the Tribunal clearly indicated that cancellation was never a realistic prospect. 6. The HCCC disputed the Respondent's submission that evidence relating to the disputed particulars, took up half the time and costs in the proceeding. The HCCC submitted that, in fact, the issue occupied little time and energy, and even a cursory review of the transcript would reveal that. It submitted that most of the time in the hearing was spent canvassing the detail of the Respondent's overall conduct as regards Patient A (and her position regarding other professional relationships, her own therapy and supervision), to assist the Tribunal, forming a view about the seriousness of it, and what the protection of the public required in the specific circumstances. (The Tribunal notes agreement with this submission by the HCCC). 7. The HCCC also reminds the Tribunal, that at large, was the application of the Respondent for an extensive non-publication order. That application was unsuccessful. Further, the HCCC submits that, in the hearing, the Respondent made no concessions as to protective orders, but very significant protective orders were made both as to suspension, and as to the ongoing practice of the Respondent. The Tribunal notes the Respondent did make a submission in relation to the possibility of a suspension order as an alternative to her proposed fine and reprimand. However, it was as a possible alternative to her primary position in relation to an appropriate protective order. 8. As the overall successful party in the proceeding, the HCCC submits that the presumption that cost ordinarily follow the event, will only be displaced where there has been some kind of disentitling contact on the part of the successful party. It submits, there is no such disentitling conduct on the part of the HCCC, evident in this matter. The HCCC sites the decision in Arian v Nguyen [2001] NSWCA 5 at [36].