Hopwood v Veterinary Surgeons Investigating Committee (No.2) [2002] NSWADT 176

CITATION: Hopwood v Veterinary Surgeons Investigating Committee (No.2) [2002] NSWADT 176 DIVISION: General Division APPLICANT PARTIES: Greg Hopwood RESPONDENT Veterinary Surgeons Investigating Committee FILE NUMBER: 003066 HEARING DATES: 13/08/02 SUBMISSIONS CLOSED: 08/13/2002 DATE OF DECISION: 09/25/2002

BEFORE: Hennessy N (Deputy President); Thompson R - Member; Mayo-Ramsay R - Member APPLICATION: Costs MATTER FOR DECISION: Costs LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 CASES CITED: Hopwood v Veterinary Surgeons Investigating Committee [2002] NSWADT 44 APPLICANT REPRESENTATION: M Wade, solicitor RESPONDENT A Stenmark, barrister ORDERS: No order as to costs against either party

Introduction 1 This decision relates to applications by both parties for an order for costs against one another under s 88 of the Administrative Decisions Tribunal Act 1997 (ADT Act). 2 The background to this matter is that on 4 April 2002, the Tribunal handed down a decision in relation to an application by Dr Hopwood for a review of certain orders made by the Veterinary Surgeons Investigating Committee (VSIC). The Tribunal made the following orders: (1) In relation to authority to amputate the pinna, the VSIC's order is set aside. In substitution for that order, we order that the complaint in relation to this matter be dismissed. (2) In relation to charging in excess of the estimated fee, the VSIC's order is set aside. In substitution for that order, we order that Dr Hopwood be reprimanded for that conduct. (3) In relation to record keeping and discharge instructions, the VSIC's order is set aside. In substitution for that order, we order that Dr Hopwood be cautioned for that conduct. (4) The decision of the VSIC to order Dr Hopwood to pay $1,417.00 being the costs of, or incidental to, investigating the complaint is affirmed. 3 The costs of the VSIC's investigation, referred to in order (4) above, are separate from the legal costs incurred as a result of the Tribunal proceedings. The legal costs are the subject of these proceedings. 4 As the Tribunal's orders disclose, Dr Hopwood was partially successful before the Tribunal. The Tribunal set aside the VSIC's decision to caution Dr Hopwood in relation to his alleged unauthorised amputation of the dog's pinna (ear). The VSIC did not come to any formal conclusion in relation to its concerns relating to record keeping, lack of care/communication on discharge and exceeding the estimated fees. In relation to the allegations involving charging in excess of the estimated fee, the Tribunal ordered that Dr Hopwood be reprimanded. The Tribunal ordered that Dr Hopwood be cautioned for his conduct in relation to record keeping and discharge instructions. Costs rule for reviewable decisions 5 In the Tribunal's first decision, we concluded that the costs rule in relation to reviewable decisions such as that under consideration in this case, is set out in s 88 of the ADT Act. (See Hopwood -v- Veterinary Surgeons Investigating Committee [2002] NSWADT 44 at [168-171].) Section 88 states that: (1) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that there are special circumstances warranting an award of costs. (2) The Tribunal may: (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987 or on any other basis. (3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs. (4) In this section, costs includes: (a) costs of or incidental to proceedings in the Tribunal, and (b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application. VSIC's submissions 6 Mr Wade, representing the VSIC, submitted that Dr Hopwood should pay its costs in relation to the proceedings before the Tribunal. The basis for that submission was that this was a professional discipline matter in which the applicant has been judged by his peers at the investigation stage, and should, in the normal course, accept that judgement without recourse to the Tribunal. The unwillingness or inability of an applicant to accept professional criticism is a factor which suggests that they should have to bear the VSIC's costs of a hearing before the Tribunal. 7 Mr Wade also tendered a letter dated 9 August 2001 from the VSIC to Dr Hopwood's solicitors. In that letter, the VSIC noted that the final day of hearing was the next day, 10 August 2001, and that Dr Hopwood had already made certain admissions which would support the VSIC's findings. Those admissions were listed in the letter. The VSIC advised Dr Hopwood that they would consent to the withdrawal of the application on condition that he pay the VSIC's costs. Dr Hopwood did not respond to that letter and Mr Wade submitted that, at the very least, the VSIC should be awarded their costs from the date of this letter. Dr Hopwood's submissions 8 Ms Stenmark, on behalf of Dr Hopwood, submitted that the substantive allegations against Dr Hopwood (that he amputated the dog's ear without authority) were dismissed and that this constituted a "special circumstance" pursuant to s 88 of the ADT Act. According to Ms Stenmark, the Tribunal accepted evidence of Dr Hopwood's peers that his conduct in amputating the dog's ear without express authority to perform that particular procedure, does not amount to misconduct in a professional respect. The Tribunal also found that the conduct did not warrant a complaint being made. 9 According to Ms Stenmark, the VSIC should have accepted the professional opinion of Dr Hopwood's peers on this question and not made adverse findings in relation to that aspect of the complaint. Its failure to do so, she says, constitutes a "special circumstance." 10 In relation to the letter of 9 August 2001, to which Dr Hopwood did not respond, Ms Stenmark stated that the letter related to record keeping and communication with the client, not to the substantive matter on which the VSIC had made an adverse finding, namely authority to amputate the dog's ear. Tribunal's reasoning and decision 11 The general costs rule under s 88, is that each party pays his or her own costs. There must be "special circumstances warranting an award of costs" before an award of costs can be made. In Citadin Pty Ltd (No. 2) -v- Eddie Azzi Australia Pty Ltd & General Pants Co Pty Ltd (RLD) [2001] NSWADTAP 31 at [7]-[8], the Appeal Panel set out some of the basic principles in relation to costs orders under s 88: The usual rule in the Tribunal is that parties bear their own costs of proceedings. Being successful in proceedings is not in itself a special circumstance. There must be some additional factor or factors present in the case to justify an award of costs. Withdrawal by an applicant of an application after a date for hearing has been set, and in circumstances where the respondent has incurred expense in briefing counsel, may be such a circumstance: see Graham -v- Director General, Department of Community Services [2001] NSWADTAP 4. On the other hand, the Tribunal has so far resisted submissions that adverse costs orders be made as a sanction to reprove allegedly unreasonable conduct by a government agency which has led to a citizen having no option but to apply to the Tribunal for relief, and in so doing incurring professional costs: see, e.g., Raethel -v- Director-General, Department of Education and Training [2000] NSWADT 56. 12 A person has a statutory right to seek review of a "reviewable decision" under the ADT Act. The fact that a person exercises that right, even in the face of some adverse judgement from one's peers is not a "special circumstance" justifying an award of costs. Similarly, being successful, or partially successful, in a proceeding is not a special circumstance. 13 The VSIC invited Dr Hopwood to withdraw his entire application in circumstances where admissions had only been made in relation to certain matters. Dr Hopwood's failure to withdraw from the proceedings having made certain admissions, is not a "special circumstance" in the context of the facts of this case. It was not unreasonable for Dr Hopwood to continue with his application, considering that he was partially successful. 14 In our view, there are no special circumstances justifying an award of costs against Dr Hopwood. 15 Similarly, there are no special circumstances justifying an award of costs against the VSIC. As President O'Connor pointed out in Citadin Pty Ltd (No. 2) -v- Eddie Azzi Australia Pty Ltd & General Pants Co Pty Ltd (RLD) [2001] NSWADTAP 31, the Tribunal has generally resisted any application for adverse costs orders against an agency as a result of allegedly unreasonable conduct. Although the Tribunal ultimately disagreed with the VSIC's decision to caution Dr Hopwood for performing a surgical procedure without authority, the VSIC's conduct in coming to that conclusion was not unreasonable. Even if it had been unreasonable, in line with previous authority on this point, that fact alone would not generally warrant a costs order being made.