Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hossain v Medical Council of New South Wales (No 2) [2024] NSWCATOD 78 Hearing dates: On the Papers Date of orders: 14 March 2024 Decision date: 14 June 2024 Jurisdiction: Occupational Division Before: The Hon T Sheahan ADCJ, Principal Member Dr E Summers, Senior Member Dr D King, Senior Member R Wellington, General Member Decision: Anwar Hossain is ordered to pay 75% of the costs of the Medical Council of New South Wales, in respect of his reinstatement application and these proceedings, in the sum of $26,590.76. Catchwords: COSTS — following the event – impecuniosity – proportion of total sum Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: Ake v Health Care Complaints Commission [2019] NSWCATOD 165 Hart v Medical Council of New South Wales [2024] NSWCATOD 21 Health Care Complaints Commission v Hossain [2022] NSWCATOD 31 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Hossain v Medical Council of New South Wales [2024] NSWCATOD 29 Ristevski v Medical Council of New South Wales [2016] NSWCATOD 18 Vo v Medical Council of New South Wales [2018] NSWCATOD 18 Texts Cited: Nil Category: Costs Parties: Anwar Hossain (Applicant) Medical Council of New South Wales (Respondent) Representation: Solicitors: Applicant (Self-Represented) Health Professional Councils Authority (Respondent) File Number(s): 2023/00173844 Publication restriction: The names of all patients identified in the material before the Tribunal remain supressed. REASONS FOR DECISION Introduction 1. Anwar Hossain's registration as a medical practitioner was cancelled, on the grounds of "professional misconduct", by this Tribunal, on 8 March 2022: Health Care Complaints Commission v Hossain [2022] NSWCATOD 31 2. Mr Hossain subsequently failed in an application for reinstatement to the register: Hossain v Medical Council of New South Wales [2024] NSWCATOD 29. 3. In that latter decision, dated 14 March 2024, the Tribunal said, in relation to costs: "57. The Council seeks an order for its costs, and relies upon clause 13(1) of Schedule 5D to the [Health Practitioner Regulation National Law (NSW) (the "National Law")] National Law … 59. Prima facie we are satisfied that the costs order sought is appropriate, but Mr Hossain is entitled to be heard on the question of costs, and we will, therefore, make a self-enforcing order, allowing him some time to seek a hearing on costs." and included in its orders (at [60]): "4. Anwar Hossain is ordered to pay the costs of the Medical Council of New South Wales in respect of his reinstatement application, and these proceedings, unless he applies to the Tribunal within 28 days for a different order as to the Council's costs." Applications in Respect of Costs 1. On 8 April 2024, Mr Hossain wrote to the Registrar in the following terms: "Please forward my appeal to repeal the order of the payment of medical council expenses to the Tribunal as directed in the verdict. … Your Honour Thank you very much for giving me the chance to appeal to the tribunal of payment of Medical council legal expenses costs in respect of my reinstatement application & the proceedings. I have been experiencing tremendous financial hardship over the last six years since 2019 when the medicare/medical council problems started. I am not working at all since 10/03/2022 when my registration was cancelled. Before this I was not working over 6 months from 2/10/2019 to 5/4/2020 because of suspension of my medical registration. Then I started working in a new practice from 6/4/2020. My no. of patient was very poor – most doctors there were working about 30 years – I was just struggling there. The PSR/Medicare put lots of restrictions of billing of various items. Medical council also put many restrictions including no more than 30 patients per day. So my income was very very low about [$5,000] per month. I had paid a huge debt of Medicare about six hundred twenty thousand dollars with very difficulties – exhausting all the savings, selling important personal & family belongings & taking significant loans from friends & relatives. I have a family of five with 03 dependent children, 02 still university students. I have health issues since the beginning of the problem. I had had heart attack with complications – now on permanent pace maker & stented. I have diabetes, highblood pressure & cholesterol problem. The medical conditions are now stable with medications. I am really really struggling both financially & mentally having no job with financial worries. Under the circumstances I do humbly request you, your honour, to repeal the order of the cost of payment of legal expenses of the medical council & help me & my family in this very difficult financial situation. For this act of kindness, I will remain grateful to you for ever. Kindest regards Anwar Hossain" 1. The Tribunal invited the successful Respondent Council to comment, and the Council's response dated 15 April 2024 included the following: "It is the Respondent's position that the Tribunal's costs order dated 14 March 2024 remain. The Respondent requests that the Tribunal set a timetable to resolve the costs issue, including to allow the Respondent to file submissions and the Applicant to file any material in reply, and to consider whether the issue can be determined on the papers without the need for a hearing. The Applicant is copied into this correspondence". 1. A timetable was then settled for the filing of written submissions by both parties, with a view to the question of costs being decided "on the papers". 2. Both parties acquiesced in that course, and duly made written submissions within the times the Tribunal had stipulated. Submissions 1. The Respondent's submissions dated 1 May 2024 seek an order that the Applicant pay its costs, either "fixed in the amount of $26,590.76, or alternatively, as agreed or assessed", relying on clause 13 of Schedule 5D of the National Law. 2. Mr Hossain's formal submissions of 20 May 2024 repeated, without addition, those he had made in his original letter, quoted above, seeking "repeal" of Order 4 of the decision refusing his reinstatement. 3. The Respondent puts its case for costs on "two primary bases", namely (1) that the reinstatement application was "wholly unsuccessful", and (2) that, in its role as "contradictor", the Respondent assisted the Tribunal by ensuring that the Applicant's evidence on reinstatement was tested. Discussion 1. As a general rule, costs "follow the event", and are compensatory, not punitive, in character. 2. However, the authorities establish that the costs discretion is unfettered. 3. Mr Hossain's application for relief from an order for costs in this case was put, essentially, on the grounds of his impecuniosity. 4. "Mere impecuniosity of the losing party [is] not a justifiable reason for departing from [the general] 'rule'.": see Health Care Complaints Commission v Philipiah [2013] NSWCA 342, at [42], and Ake v Health Care Complaints Commission [2019] NSWCATOD 165, at [51]-[52]. 5. In terms of its role as "contradictor" in this case, the Respondent filed documents, prepared submissions, engaged expert witnesses, made them available for cross-examination, appeared at the hearing, and cross-examined the Applicant and his witnesses. 6. The Tribunal acknowledges that it was greatly assisted by those efforts on the part of the Respondent: see also Vo v Medical Council of New South Wales [2018] NSWCATOD 18 ("Vo"), at [141]-[144], and cases there cited. 7. In one of the cases cited in Vo, Ristevski v Medical Council of New South Wales [2016] NSWCATOD 18, the contradictor was described as a "public interest respondent", and in Vo's case, the Tribunal awarded costs to the respondent Council where the applicant had in fact succeeded. 8. These principles have been applied consistently, including as recently as in Hart v Medical Council of New South Wales [2024] NSWCATOD 21, at [69]-[77]. 9. In the present case, the Tribunal sees no reason to depart from those principles, and will, accordingly, make an order for costs in favour of the Council. Fix the Amount ? 1. There is a strong argument for making an order for costs in a fixed amount: it saves time, inconvenience, and the incurring of further costs on both sides. 2. The Respondent particularised (submissions, par 19) its costs and disbursements in the present case, nett of GST, and supported those particulars with copies of relevant invoices, receipts, etc. 3. The total incurred by way of costs and disbursements was $35,454.35, excluding GST, and the Tribunal finds all the constituent amounts to be reasonable in the circumstances of the case. 4. As the Respondent submits, some of those amounts might be reduced on assessment, so the Tribunal agrees that an appropriate fixed amount to order would be 75% of the total, namely, $26,590.76. Order 1. The Tribunal will make an order in the amount sought: Anwar Hossain is ordered to pay 75% of the costs of the Medical Council of New South Wales, in respect of his reinstatement application and these proceedings, in the sum of $26,590.76. ********** 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: 14 June 2024