Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Bolton v Health Care Complaints Commission (No 2) [2024] NSWCATOD 38 Hearing dates: On the papers Date of orders: 25 March 2024 Decision date: 25 March 2024 Jurisdiction: Occupational Division Before: R C Titterton OAM, Senior Member Decision: (1) A hearing is dispensed with. (2) The applicant is to pay the respondent's costs as agreed or as assessed. Catchwords: PROFESSIONS AND TRADES – optometry – costs – no question of principle Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 38(6) Health Practitioner Regulation National Law 2009 (NSW), cl 13 of Sch 5D Cases Cited: Ake v Health Care Complaints Commission (2019] NSWCATOD 165 Blair v Health Care Complaints Commission [2023] NSWCATOD 35 Fryar v Health Care Complaints Commission [2015] NSWCATOD 117 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Holbrook v Health Care Complaints Commission [2014] NSWCATOD 86 Jan v Health Care Complaints Commission [2021] NSWCATOD 141 Moslemi v Health Care Complaints Commission [2022] NSWCATOD 170 Ristevski v Medical Council of NSW [2016] NSWCATOD 18 Stone v Health Care Complaints Commission (2020] NSWCATOD 57 Westerweller v The Owners Strata Plan No 18482 [2023] NSWCATAP 113 Category: Principal judgment Parties: Benjamin Bolton (Applicant) Health Care Complaints Commission (Respondent) Representation: Applicant (self-represented) Health Care Complaints Commission (Respondent) File Number(s): 2023/00213373 Publication restriction: Nil REASONS FOR DECISION Introduction 1. Reasons for decision in this matter were published on 29 January 2024 (Primary Decision). 2. I will not repeat those reasons, but suffice it to note, that for the reasons published, the Tribunal dismissed the applicant's application for reinstatement to the Register of Optometrists. Preliminary matter 1. In the Primary Decision, the Tribunal stated that it proposed to deal with costs "on the papers" and without a hearing. I note that in Westerweller v The Owners Strata Plan No 18482 [2023] NSWCATAP 113 the Appeal Panel stated at [85] that: [i]t is the experience of the Appeal Panel that costs decisions in the Consumer and Commercial Division and on appeal (unless dealt with at the time of the hearing) are routinely considered "on the papers", and without a hearing. The parties were given an opportunity to provide written submissions and did so. They can be presumed to have included all relevant issues in their written submissions. 1. That principle equally applies to decisions in the Occupational Division. 2. Neither party opposed me determining costs on the papers. As I am satisfied that the issue of costs can be adequately determined in the absence of the parties by considering their written submissions, I dispense with a hearing: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 50(2). Indicative costs order 1. At pars [70] to [75] of the Primary Decision the Tribunal stated: Costs 80. The Tribunal has repeatedly indicated, as has the Court of Appeal, that this is a costs jurisdiction, and the ordinary rule is that costs follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342. 81. The applicant has been unsuccessful. He should pay the Commissions costs, as agreed or assessed. 82. However, we have not had the benefit of submissions on this issue. If the applicant opposes the proposed order, he may file submissions on the matter within 14 days of receiving these reasons. The Commission may respond within a further 14 days, and the applicant may reply within a further 7 days if he wishes. 83. We propose to determine costs "on the papers" and without a hearing. If either party opposes that course they must address that issue in their submissions. 84. Submissions are to be limited to 5 pages. Submissions The applicant's submissions 1. The applicant sent an email to the Commission copied to the Tribunal, on 12 February 2024. The email states: I have been given the opportunity to oppose the Tribunal's proposal to cover HCCCs legal costs. Ultimately I understand that financial difficulty is not usually considered. However my financial situation is the reason I did not seek legal representation at either my primary or secondary Tribunal hearings. Upon leaving prison in 2018 I was devoid of any monetary savings, employment, viable qualifications or assets. I had alternatively acquired significant legal debt. Since then I have qualified in Traffic Control and in my initial application for re-registration I shared my financial status with the HCCC and Tribunal and detailed my unsuccessful efforts to organise a payment plan with the financial sector of the HCCC and their ultimate failure to follow up in early January 2022 regards this. Again my financial status has changed. At Christmas my employer lost local contracts in Traffic Control. As such I have not received any paid work in 2024 and am currently unemployed and in receipt of Centrelink benefits. I have attached images describing my financial status. Currently I am continuing my coursework in Cert 3 Conservation and Ecosystem Management in person now at TAFE 2 days per week. My hope is for employment within the Environmental industry upon qualification at the end of this year. As it stands my qualification in B. Optometry and PGrad Ocular Therapeutics are redundant from a clinical employment perspective. My only other qualification is in Traffic Control and as mentioned at the moment no work is available. I have always been single and have always relied my own income. There are no other revenue sources in my household. Financially I am not in a position to pay HCCCs costs incurred in either the Primary or Secondary Tribunals and this is not going to change any time soon. As described I have no personal assets and the loan noted in my bank statements is for my vehicle I need to attend any available work. I do not own the vehicle outright. At this point I have not sought to determine or find any precedents to my situation. I am simply stating the facts of my financial situation. 1. Attached to and forming part of the email are a number of "screen shots" which demonstrate that the applicant's current savings are about $850.00, that he has a personal loan in respect of which he owes about $3,380.00 and that he has fortnightly (possibly loan) repayments of $837.95. The respondent's submissions 1. The respondent's submissions may be summarised as follows. 2. First, as the practitioner alluded to, an applicant's financial situation is not a relevant consideration for the Tribunal in its determination under the Health Practitioner Regulation National Law 2009 (NSW) (National Law). 3. Secondly, as outlined at [80] of the Primary Decision, this is a costs jurisdiction, and the ordinary rule is that costs follow the event. Further, mere impecuniosity is not a justifiable reason for departing from that rule: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]. 4. Thirdly, the Tribunal, in reinstatement applications, where the application for review was dismissed, and the practitioner opposed costs on the grounds of financial hardship, has regularly ordered the practitioner to pay the Commission's costs: Blair v Health Care Complaints Commission [2023] NSWCATOD 35; Fryar v Health Care Complaints Commission [2015] NSWCATOD 117 and Holbrook v Health Care Complaints Commission [2014] NSWCATOD 86. 5. Fourthly, reinstatement proceedings arise because of the prior misconduct of the practitioner and can be seen as ancillary to the original proceedings which resulted in the cancellation of the practitioner's registration, so it is open to the Tribunal to order the practitioner to pay the Commission's costs: Ake v Health Care Complaints Commission (2019] NSWCATOD 165 at [48]. 6. Fifthly, a reinstatement application ordinarily has its genesis in a finding of professional misconduct involving conduct so egregious that cancellation of registration is required in the public interest. The practitioner should factor in the possibility of their application being tested and challenged by a respondent for the public interest. Provided the Commission conducts its case appropriately, it should be compensated, regardless of whether the application for reinstatement is granted or refused: Ristevski v Medical Council of NSW [2016] NSWCATOD 18 at [87], followed in: Ake at [49]-(53]; Stone v Health Care Complaints Commission (2020] NSWCATOD 57 at [41-[45]; Jan v Health Care Complaints Commission [2021] NSWCATOD 141 at [33], [61]; Moslemi v Health Care Complaints Commission [2022] NSWCATOD 170 at [41]-[49]. 7. Sixthly, in conducting a review of a relevant order under s 163B of the National Law, there is a public interest in the Tribunal being assisted by the Commission because, without a contradictor, there would be a risk that the Tribunal might only have available the self-serving evidence adduced by the practitioner: Ake at [51]. 8. Seventhly, the involvement of the Commission as a public interest contradictor in review proceedings assists the Tribunal in discharging its obligation to ensure that all relevant material is disclosed so as to enable it to determine all relevant facts in issue: Civil and Administrative Tribunal Act 2013 (NSW), s 38(6)(a); Ake at [51]. 9. Eighthly, particularly in circumstances where the application for reinstatement has been dismissed, and the Commission has acted properly and responsibly in the public interest as contradictor, the fair and reasonable decision is that costs be awarded in its favour. 10. Finally, the Commission submits that the practitioner may approach the Commission after a costs order is made for an extension of time within which to pay its costs, or to seek a reduction in costs as agreed on the basis of financial hardship. The applicant's submissions in reply 1. The practitioner did not file any submissions in reply. Consideration 1. As the Tribunal stated in the Primary Decision, this is a costs jurisdiction. This is well-established. And, in Health Care Complaints Commission v Livermore [2021] NSWCATOD 115 the Tribunal stated at [19]: The authorities are clear on this issue. In applying the provisions of cl 13, the general rule is that costs follow the event and that costs are intended to compensate the successful party, absent any disentitling conduct: [Health Care Complaints Commission v ] Philipiah [2013] NSWCA 342 at [42]; Lucire v Health Care Complaints Commission (No 2) [20111 NSWCA 182; Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [87]; Singh v Medical Council of NSW (No 2) [2015] NSWGATOD 28 at [45]. 1. In Ake, the Tribunal set out the following principles to be applied to determine the costs of proceedings for the reinstatement of a practitioner: [46] In exercising the power to award costs, conferred by cl 13, Sch 5D to the National Law, the general "rule" is that costs follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 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]. [47] Whether the discretion to award costs should be exercised in favour of the Commission raises the issue of whether the so-called compensatory principle — that without some disentitling conduct a successful party is generally entitled to recover their costs — can and should be applied where the Tribunal makes a reinstatement order under s 163B of the National Law. [48] This issue was addressed in Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 (Ameisen). There, the Tribunal considered it a misnomer to describe an applicant who is reinstated following an inquiry to review a "relevant order" as having been "successful". Reasoning that this characterisation "misunderstands the nature of the respondent's involvement in the proceedings", the Tribunal pointed out at [90] that reinstatement proceedings "arise because of the prior misconduct of the applicant [practitioner], and can be seen as ancillary [to the original proceedings which resulted in the cancellation of the practitioner's registration]". The Tribunal ordered Dr Ameisen to pay the respondent Council's costs, notwithstanding its decision that he be reinstated to the register of medical practitioners. [49] This approach was followed in Ristevski v Medical Council of NSW [2016] NSWCATOD 18. There the Tribunal concluded at [87]: Provided the respondent conducts its case appropriately, it should be compensated regardless of whether the order is granted or refused. [50] In Ristevski the Tribunal examined a number of cases where on review of the relevant order, the applicant practitioner was reinstated but not ordered to pay the costs of the respondent Council or Commission: Mnyandu v Health Care Complaints Commission [2015] NSWCATOD 43, Donnelly v Health Care Complaints Commission [2014] NSWCATOD 155 and Roberts v Medical Council of New South Wales [2015] NSWCATOD 35. The Tribunal concluded that each case had "exceptional features" and the relevant Tribunal had been critical of aspects of the respondent's participation in the inquiry: Ristevski at [74], [78], [82] and [88]. (See also Vo v Medical Council of NSW [2018] NSWCATOD 18 at [144]. Cf Haber v Health Care Complaints Commission [2018] NSWCATOD 16; Shah v Health Care Complaints Commission (No 2) [2016] NSWCATOD 102) [51] We agree with the view expressed by the Tribunal in Ristevski at [70]-[71] that in conducting a review of a relevant order under s 163B of the National Law, there is a public interest in the Tribunal being assisted by the relevant practitioner Council or the Commission. Without a respondent in this class of matters, there is a risk that the Tribunal might only have available the self-serving evidence adduced by the applicant practitioner. The involvement of, to use the term coined in Ristevski, a "public interest respondent" in review proceedings, assists the Tribunal in discharging its obligation to ensure that all relevant material is disclosed so as to enable it to determine all relevant facts in issue: s 38(6)(a) of the Civil and Administrative Tribunal Act 2013 (NSW)." 1. I note that in Blair, the Tribunal stated: 87. … A reinstatement application ordinarily has its genesis in a finding of professional misconduct involving conduct so egregious that cancellation of registration is required in the public interest. The applicant should factor in the possibility of their application being tested and challenged by a respondent for the public interest. Provided the respondent conducts its case appropriately, it should be compensated regardless of whether the [reinstatement] order is granted or refused. 1. While I accept that the applicant is in straightened financial circumstances, and will be unable to satisfy any costs order in the short term, the Tribunal would fall into error were it not to award costs for that reason alone. The Tribunal and the Court of Appeal have repeatedly stated that mere impecuniosity is not a justifiable reason for departing from the general rule that costs follow the event: see Philipiah at [42]. 2. It follows that the appropriate order is, as previously indicated in the Primary Decision, the applicant must pay the respondent's costs of the proceedings as agreed or as assessed. Orders 1. The Tribunal orders: 1. A hearing is dispensed with. 2. The applicant is to pay the respondent'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 Amendments 04 April 2024 - Order 2 and Par 25 the words 'The respondent is to pay the applicant's costs as agreed or as assessed' are replaced with 'The applicant is to pay the respondent's costs as agreed or as assessed' 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 April 2024