Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Muthukrishna (No. 2) [2024] NSWCATOD 142 Hearing dates: On the papers (last submissions received 7 August 2024) Date of orders: 10 September 2024 Decision date: 10 September 2024 Jurisdiction: Occupational Division Before: Seiden SC DCJ, Deputy President Decision: (1) Pursuant to s 50 of the Civil and Administrative Tribunal Act 2013 (NSW), the Tribunal dispenses with a hearing on the issue of costs. (2) The respondent is to pay the applicant's costs as agreed or assessed. Catchwords: COSTS — clause 13 of Sch 5D to the National Law — general rule that costs follow the event — where applicant was largely successful — no disentitling conduct — hearing dispensed under s 50 of the NCAT Act. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) 2009 Cases Cited: Chatoor v Health Care Complaints Commission of NSW [2020] NSWCA 111 Health Care Complaints Commission v Morsingh (No 2) [2023] NSWCATOD 183 Health Care Complaints Commission v Muthukrishna [2024] NSWCATOD 105 Puri v Medical Council of New South Wales (No 2) [2024] NSWCATOD 122 Category: Costs Parties: Health Care Complaints Commission (Applicant) Reshan Muthukrishna (Respondent) Representation: Health Care Complaints Commission (Applicant) Respondent (self-represented) File Number(s): 2024/00029945 Publication restriction: Orders were made by the Tribunal on 24 July 2024 prohibiting the publication of the name of the Friend and the nature and location of Patient A's employment as defined in the reasons for the decision in Health Care Complaints Commission v Muthukrishna [2024] NSWCATOD 105. Orders were made by the Tribunal on 2 February 2024 prohibiting the publication of names set out in the schedule to the Complaint by the Health Care Complaints Commission against Reshan Muthukrishna and dated 24 January 2024. REASONS FOR DECISION Background 1. In Health Care Complaints Commission v Muthukrishna [2024] NSWCATOD 105, the Tribunal determined both stage 1 and 2 of proceedings for disciplinary findings and orders under the Health Practitioner Regulation National Law (NSW) (National Law) (the Decision). This decision concerns the costs of the proceedings. 2. By orders 2 and 4 of the Decision, the respondent was disqualified from being registered in the health profession (physiotherapy) and prohibited from providing a health service for 3.5 years (albeit, the applicant had sought 5 years). Other orders sought by the applicant were made. Decision on the papers 1. The Tribunal, having given the parties an opportunity to make submissions, is satisfied that the issue of costs may be adequately determined in the absence of the parties, by considering the written submissions filed by the applicant (AWS), noting that the respondent did not file submissions: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 50. Further, it is in the interests of avoiding an escalation of costs, expediency and efficiency that the issue of costs be determined without a hearing. This is consistent with the objectives and principles of the National Law requiring expediency under cl 11 of Sch 5D, and the "guiding principle" of the Tribunal (NCAT Act, s 36) which requires the "just, quick and cheap resolution of the real issues in the proceedings." Constitution of the Tribunal 1. Sections 165B(2)(a) and (5A) of the National Law provides as follows: 165B Constitution of Tribunal for complaints, applications and appeals [NSW] … (2) Except as provided by subsections (4), (5) and (5A), the Tribunal, when conducting an inquiry or hearing an appeal under this Law, is to be constituted by— (a) 1 Division member who is an Australian lawyer of at least 7 years' standing or, in the case of medical practitioner proceedings, 1 Division member who is a senior judicial officer; and … (5A) The Tribunal, when constituted to make an ancillary decision or an interlocutory decision within the meaning of the Civil and Administrative Tribunal Act 2013, is to be constituted by the Tribunal List Manager or the member referred to in subsection (2) (a). … 1. Pursuant to s 165 of the National Law, a "Division member" means "a Division member of the Occupational Division of the Tribunal". Section 165(b) of the National Law defines a "senior judicial officer" to include "a Judge of the District Court". 2. A decision concerning the award of costs is expressly referred to in the definition of "ancillary decision" in s 4 of the NCAT Act. 3. As a Division member of the Tribunal's Occupational Division who is a senior judicial officer within the meaning of s 165 of the National Law, I therefore have jurisdiction to determine the award of costs in this matter. Other decisions where an application for costs was determined by the presiding member sitting alone include Chen v Medical Council of New South Wales (No 2) [2021] NSWCATOD 64, Riley v Health Care Complaints Commission (Costs) [2019] NSWCATOD 65 and Health Care Complaints Commission v Neale [2024] NSWCATOD 16. Legislation 1. Clause 13 of Sch 5D to the National Law relevantly provides: 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. … (4) This clause applies instead of section 60 (Costs) of the Civil and Administrative Tribunal Act 2013. 1. In all proceedings under the National Law, the Tribunal is under a duty to observe the objectives and principles of the National Law, including that the protection of the health and safety of the public must be the paramount consideration; but also that the "scheme is to operate in a transparent, accountable, efficient, effective and fair way": National Law, s 3A. Applicable principles 1. This Tribunal, in Puri v Medical Council of New South Wales (No 2) [2024] NSWCATOD 122 (Puri), recently outlined principles applicable to the general rule that costs follow the event, at [13]: "(1) Costs generally follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 (Philipiah) at [42], Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [85]; Health Care Complaints Commission v Do [2014] NSWCA 307 at [51], Kitoko v Sydney Local Health District [2024] NSWCA 49 at [129], Northern Territory v Sangare (2019) 265 CLR 164 (Sangare) at p 173; [2019] HCA 25 at [25]. (2) This is not an absolute rule: Health Care Complaints Commission v Wilcox (No 2) [2020] NSWCATOD 51 (Wilcox) at [9], Philipiah at [42]–[45]. (3) Costs are to compensate the winning party and are not a form o[f] punishment: Philipiah at [44]; Kitoko v Sydney Local Health District [2024] NSWCA 49 at [129]; Sangare at [24]. (4) What follows from the compensatory purpose of a costs order, is that if the winning party engaged in any conduct that disentitles them to costs, this will disturb the usual rule. As noted by Hennessy ADCJ in Health Care Complaints Commission v Balafas (No 2) [2021] NSWCATOD 175 at [3]: "Because costs are intended to compensate the successful party, the general rule will only be displaced where there has been some sort of disentitling conduct on the part of the successful party: Arian v Nguyen [2001] NSWCA 5 at [36]; Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [40] and [69]." (5) The NCAT Occupational Division, Guideline on Costs, 2017, provides at [14]: "The Tribunal may make a costs order in disciplinary proceedings or an appeal brought under the Health Practitioner Regulation National Law. Costs are generally awarded to the successful party unless there are disqualifying circumstances." (6) In Moseley v AB (No 2) [2017] NSWSC 1812, Walton J outlined the principles of disentitling conduct at [71]–[73]. Examples of disentitling conduct were outlined by McHugh J in Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [69] including: "'Misconduct' in this context means misconduct relating to the litigation, or the circumstances leading up to the litigation. Thus, the court may properly depart from the usual order as to costs when the successful party by its lax conduct effectively invites the litigation; unnecessarily protracts the proceedings; succeeds on a point not argued before a lower court; prosecutes the matter solely for the purpose of increasing the costs recoverable; or obtains relief which the unsuccessful party had already offered in settlement of the dispute." (Footnotes omitted) (7) As noted by Hennessy ADCJ in Health Care Complaints Commission v Balafas (No 2) [2021] NSWCATOD 175 at [3]: 'The onus is on 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]'" 1. The decision of Puri also outlined circumstances where the general rule may be overtaken where the party has not been wholly successful: at [14]. 2. In Health Care Complaints Commission v Morsingh (No 2) [2023] NSWCATOD 183, the Tribunal ordered the respondent to pay only a fraction of the applicant's costs on the basis that the applicant had failed on many issues of substance, including in proving professional misconduct, as alleged. The Tribunal identified it may be necessary to parse the result to determine the appropriate outcome: at [12] to [21]. One case there referred to was Chatoor v Health Care Complaints Commission of NSW [2020] NSWCA 111, where the Court of Appeal awarded the practitioner a large fraction of his costs, even though some of the complaint particulars had been made out. Consideration Submissions 1. The applicant provided submissions (AWS at [2]) broadly consistent with the principles set out above. 2. The applicant submits (AWS at [3]) that it was the successful party because each of the complaints were proved and a prohibition and disqualification period was granted (despite the period imposed being shorter than that sought). 3. The applicant submits there was no disentitling conduct (AWS at [4]): "a. the Commission took a number of steps during the proceedings to minimise costs, including not briefing counsel; b. the Commission acted appropriately to progress the proceedings; c. the Commission served its material in accordance with the Tribunal timetable; d. the Commission appropriately required the practitioner and his treating psychologist for cross-examination; e. the Commission conducted the hearing appropriately, the Commission's material was admitted without objection and the matter was completed within the allocated estimate; f. the Commission made appropriate written submissions in accordance with the Tribunal's orders." 1. The applicant's proposed order as to costs was also identified (AWS at [5]), along with the steps taken and to be taken with respect to it: "The Commission seeks an order that the practitioner pay the Commission's costs 'as agreed or assessed' (the proposed order). It is not necessary or appropriate for the Tribunal to fix a specific amount of costs in this matter (a fixed costs order)…The proposed order allows the parties to reach agreement on the quantum of costs and any timeframe for instalments...Once the proposed order is made, the Commission will provide the practitioner with the detailed costs schedule for the practitioner to consider. In the unlikely event that the parties cannot reach agreement on quantum during negotiations, the parties will proceed to costs assessment." (Footnotes omitted) 1. The respondent did not file submissions. Determination 1. Having regard to the fact that each of the complaints and their particulars were proved, the Tribunal accepts that the applicant was, at least, overwhelmingly successful, even though the prohibition and disqualification period was less than originally sought. In any event, the circumstance that the prohibition and disqualification period was less than originally sought, did not extend the hearing time; nor did it lead to any additional costs. 2. The Tribunal has taken into account that the respondent was cooperative, did not require the applicant's witness for cross examination, (ultimately) admitted all of the particulars and conducted his side of the proceedings efficiently. However, whilst this no doubt reduced the hearing time, it did not obviate the need for a hearing and does not disentitle the applicant to costs. 3. Further, the Tribunal accepts that the applicant conducted the hearing efficiently and did nothing that might disentitle the applicant to costs. 4. The applicant is entitled to an order for costs to compensate them as the successful party. Further, the Tribunal accepts the applicant's submission that the appropriate order is that the respondent pay the applicant's costs as agreed or assessed and that this is the most economical course. Orders 1. The Tribunal orders: 1. Pursuant to s 50 of the Civil and Administrative Tribunal Act 2013 (NSW), the Tribunal dispenses with a hearing on the issue of costs. 2. The respondent is to pay the applicant's costs as agreed or 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 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: 10 September 2024