O'Sullivan v Health Care Complaints Commission and anor (No 2) [2011] NSWADT 82

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: O'Sullivan v Health Care Complaints Commission and anor (No 2) [2011] NSWADT 82 Hearing dates: On the papers Decision date: 20 April 2011 Jurisdiction: Equal Opportunity Division Before: Deputy President D Patten, M O'Sullivan Non-judicial member, L Monaghan-Nagle Non-judicial member Decision: The applicant is to pay the respondent's costs of the proceedings (other than those the subject of any previous order) such costs to be as agreed upon or in default of agreement as assessed pursuant to the Legal Profession Act 2004. Catchwords: Application for costs - No foundation for claim - repeated failures to comply with directions etc Legislation Cited: Anti Discrimination Act Administrative Decisions Tribunal Act Cases Cited: Nil Texts Cited: Nil Category: Costs Parties: Brendan O'Sullivan (applicant) Health Care Complaints Commission (1st respondent) Kieran Pehm (2nd respondent) File Number(s): 091056 Publication restriction: Nil

reasons for decision 1This decision relates to the respondents application for costs following the dismissal of the proceedings on 30 December last. It is unnecessary to repeat the reasons then given for such dismissal. 2The jurisdiction to award costs arises from sections 110 of the Anti Discrimination Act (ADA) and section 88 of the Administrative Decisions Tribunal Act (ADTA). Those sections provide as follows: 110 Tribunal may award costs The Tribunal may award costs under section 88 of the Administrative Decisions Tribunal Act 1997 in respect of proceedings before the Tribunal in relation to a complaint 88 Costs (1) Each party to proceedings before the Tribunal is to bear the party's own costs in the proceedings, except as provided by this section. (1A) 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 it is fair to do so having regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as: (i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or (ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or (iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or (iv) causing an adjournment, or (v) attempting to deceive another party or the Tribunal, or (vi) vexatiously conducting the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) any other matter that the Tribunal considers relevant. (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 a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 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. 3In support of its contention that an order for costs should be made in its favour the respondents provided a history of the matter as it progressed towards hearing in the Tribunal. The history was unchallenged by the applicant and is relevantly reproduced as follows: 9. On 22 July 2009 these proceedings were listed for a case conference. A timetable was made which required the applicant to file and serve his points of claim, witness statements and any documents he wished to rely on by 1 September 2009. The applicant furnished an unsealed copy of his points of claim by 31 August 2009 but did not serve a filed version of this document. 10. On 30 September2009 the matter was again listed for a case conference and the following directions were made - (a) within 14 days, that is, by 14 October 2009 the applicant is to either amend his points of claim to remove reference to Dr Anderson's report or to provide a copy of that report to the Crown Solicitor and the Tribunal; (b) the applicant to file and serve any additional evidence by 21 October 2009; (c) the respondents to file and serve their evidence by 11November 2009; (d) the matter listed for hearing with an estimate of 2days on11and14 December 2009. 11. The directions referred to in paragraphs (a) and (b) above were not complied with and the Crown Solicitor's correspondence concerning the non-compliance was not responded to (letters from Crown Solicitor to Eaves Legal dated 16 October 2009, 23 October 2009 & 3 December 2009 tendered as exhibits on 11 December 2009). 12. The respondents' evidence was filed and served on 11 November 2009. However, this evidence was ultimately not relied on by the applicant. 13. On 10 December 2009 the applicant and his solicitor sent correspondence by facsimile to the Tribunal but did not furnish copies of that correspondence to the respondents or their representatives. By that correspondence an adjournment was sought. 14. On l I December 2009 the respondents attended the Tribunal prepared for the hearing and unaware that an adjournment was sought by the applicant. There was no appearance by the applicant or his legal representative. The Tribunal was unable to contact the solicitor who was acting for the respondent but was able to contact the applicant by phone. He made some assertions about his inability to attend the hearing and sought an adjournment. No evidence was served in support of that application and the respondents had no prior notice of it. 15. As it transpired the hearing did not proceed on 11 December because a Tribunal member recused herself. An application for costs was made by the respondents and the respondents repeat the arguments they made on that occasion. Judgment on the question of costs was reserved but has subsequently been dealt with. The following orders were made - (a) the hearing is vacated; (b) matter listed for case conference on 3 February 2010; (c) on or before 29 January 2010 the applicant to file and serve any evidence he wishes to put before the Tribunal with respect to the respondents' costs application and any submissions in writing concerning that costs application; (d) the period for the applicant to file and serve any additional evidence is extended to 29 January 2010; (e) the applicant is to either file and serve Dr Anderson's report or amended points of claim by 29 January 2010; (f) the applicant to either file any further evidence on which he intends to rely or alternatively advise the Tribunal and the respondents that he does not intend to file further evidence by 29 January 2010; (g) note that Ms Mobbs is not a party. 16. The applicant filed no evidence in connection with the costs application. Submissions were eventually filed but not until 8 July 2010. The direction concerning further evidence was not complied with and neither was the direction concerning Dr Anderson's report and the points of claim. 17. An affidavit of the applicant dated 12 January 2010 was filed on 15 January 2010 and served on 15 February 2010. This affidavit was ultimately not relied on by the applicant either. 18. On 20 January 2010 proceedings before the Tribunal by the applicant against the Medical Board of NSW were listed for a case conference at which it was directed that any application for a concurrent hearing of those proceedings with the current proceedings be made in writing by the applicant and be served on all prospective respondents by 29 January 2010. That matter was listed on 22 and 23 February 2010 for hearing of any argument on the adequacy of the points of claim and points of defence and any application to have that matter heard concurrently with any other matter. 19. No application was filed but a letter from the applicant's solicitor dated 1 February 2010 which stated that the applicant wished to pursue an application that this matter and matters numbered 081112 and 091055 be heard concurrently was sent to the Tribunal but not to the solicitor with carriage of this matter for the respondents in these proceedings. 20. At the case conference on 3 February 2010 the following orders and directions were made - (a) the time for compliance with the order referred to in paragraph 15(c) above was extended to 19 February 2010; (b) the time for compliance with the order referred to in paragraph 15(f) was extended to 10 February 2010; (c) the time for compliance with the order referred to in paragraph 15(e) was extended to 19 February 2010; (d) the matter was set down for hearing on 30 March 2010 with an estimate of one day. 21. On 19 February 2010 the applicant filed and served an affidavit but neglected to serve the annexures to that affidavit. The annexures were not served until 26 March 2010. 22. On 22 February 20 10 the respondents appeared to contest the consolidation application. The applicant's solicitor informed the Tribunal that as only matter 091055 appeared in the list that morning he was not prepared to deal with the consolidation application that day and asked for that application to be adjourned. The application was adjourned to 23 February 2010 and costs reserved. The costs of that day have already been dealt with by the Tribunal. 23. The respondents again appeared on 23 February 2010 to respond to the applicant's consolidation application. The matter did not proceed on that date either. Judgment in proceedings 081112 was handed down that day dismissing the complaint pursuant to section 102 of the Anti-Discrimination Act ('the Act') and the applicant chose not to proceed with his application. 24. On 22 March 2010 judgment was delivered in the Medical Board matter 091055 which dismissed those proceedings under section 102 of the Act. On 26 March 2010 the respondents sent a Calderbank letter to the applicant's representatives concerning these proceedings (a copy of which is attached to these submissions). No response was made to that letter. 25. Also on 26 March 2010 the applicant served the annexures to his affidavit of 19 February which comprised some 200 pages. Neither the annexures nor the affidavit were ultimately relied on at the hearing. The applicant's legal representative also sent a facsimile letter on 26 March indicating that due to his illness he would not have time to prepare properly for the hearing. 26. On 28 March 2010 the applicants sent an email to the Tribunal and to the respondents' representatives attaching 2 letters and seeking a further adjournment of the hearing on the grounds that his legal representative was unwell and that he was intending to appeal the judgment in matter 091055. He requested that the proceedings be stood over for mention only to a date following the determination of "my appeal in 091055". 27. By a letter of 28 March 2010 from the applicant's legal representative to the Tribunal (which was not forwarded to the respondents) a medical certificate was furnished and various submissions made. This letter makes reference to a letter dated 26 March 20 10 which was not furnished to the respondents. 28. On 30 March 2010 the applicant and a new legal representative appeared before the Tribunal as did the respondents. An adjournment application was pursued by the applicant. It was partially successful and the hearing was adjourned to 3 May 2010 with an estimate of 1 day. The respondents sought costs and directions were made concerning the costs applications. 29. On 22 April 2010 the applicant sought the issue of 9 summonses to give evidence and produce documents. On the same date Dr O'SulIivan sent a letter to the Tribunal stating that he had difficulties with the upcoming hearing date and suggesting a further adjournment of the hearing. 30. On 27 April 2010 the applicant's solicitor, Mr Eaves, ceased to act for him. 31. On 3 May 20I0 the matter was listed for hearing. The applicant appeared unrepresented and maintained his application for an adjournment on the ground that he had recently been deprived of legal representation. In declining the adjournment application the Tribunal held that applicant's evidence that he had only recently been deprived of legal representation was completely destroyed by an email from his solicitor produced in answer to a call. 32. The Medical Board appeared on 3 May and applied to set aside various summonses. The Tribunal set aside all summonses except for those addressed to Dr Westmore (who had produced documents without objection) and Mr Comans (who had not been served). 33. The applicant was then asked to present his case. He made a large number of submissions that were neither relevant or supported by evidence and repeatedly sought to renew his application for an adjournment. The applicant also maintained that he wished to put on further evidence. The entire day was taken up with the applications to set aside summonses, the applicant's adjournment applications, his submissions about his lack of representation, and various other matters. He did not present any evidence in support of his complaint. 34. Towards 4pm on 3 May 2010 the matter was adjourned and the applicant was directed to file and serve any further affidavits he intended to rely on within 21 days. It was noted that the HCCC would endeavour to produce copies of minutes of the Medical Board for the period 1 January 2008 to 1 December 2008, the Tribunal reserved the costs of the adjournment application and stood over the substantive hearing part heard to 28 June 2010. 35. An affidavit of the applicant's new solicitor was served on 25 May 2010 which annexed various minutes that had been produced by the HCCC. He also sent a facsimile to the Tribunal asking for the matter to be re-listed to deal with difficulties the Applicant was having complying with the directions. 36. The matter was listed again on 1 June 2010. Leave was granted to issue a further summons returnable on 16 June 2010. On the return date of the summons legal professional privilege was claimed by the Medical Board in respect of the documents sought. 37. On 25 June 2010 the applicant served a very substantial volume of documents that he intended to rely upon at the hearing. The applicant relied only on these documents at the hearing and did not rely on affidavits and documents that had previously been served. 4The Respondent contended that the manner by which the applicant conducted the case as outlined above, in effect, substantially and unreasonably increased the cost and delay of the proceedings. We agree with this contention. 5We are also of the opinion that there was no foundation for the claim which was always bound to fail. Indeed it seems that the applicant was himself aware that he had no evidence to support his case but believed that if he was given the opportunity to cross-examine the second respondent some helpful testimony might emerge. The second respondent did in fact swear and file an affidavit which of itself contained nothing of assistance to the applicant's case but may if relied upon by the respondent have given him an opportunity to cross examine Mr Pehm. In the result however the affidavit was not read and the opportunity for cross examination did not arise. 6In our opinion the applicant cannot take any comfort on the costs issue from the respondents decision not to read the second respondent's affidavit. In light of the documentary evidence referred to in our previous reasons it seems inherently unlikely that the second respondent could have given any evidence supportive of the applicant's case. As we pointed out in our reasons in our opinion there was ample material to justify the Medical Board's decision to require the applicant to undergo a psychiatric assessment. That such assessment apparently did not impact on the applicant's right to practice is not to the point. 7In our opinion the conduct of the applicant did fall within paragraphs (a) subparagraphs (i), (iii), (iv) and (vi) of ss (1A) of s88 of the ADTA and within paras (b) and (c) of the same subsection. 8We should point out that there is no obligation on a party who has filed an affidavit to read that affidavit at the hearing. Particularly was that so in this case where the applicant more than once changed the material on which he sought to rely which at best was no more than circumstantial. It is quite inappropriate and an abuse of process for a litigant to commence proceedings in the hope that he may have an opportunity to cross examine his opponent who in turn may during such cross examination overcome what would otherwise be glaring deficiencies in the case. Of course there was nothing to prevent Mr Pehm's affidavit being tendered as an exhibit in the applicant case if that course were deemed appropriate but that would not achieve an objective of requiring Mr Pehm for cross examination. 9In our opinion it would be fair within ss(1A) of S88 of the ADTA to award costs against the applicant such award to exclude costs which have been the subject of any previous order of the Tribunal. 10Accordingly we order that the applicant pay the respondent's costs of the proceedings (other than those the subject of any previous order) such costs to be as agreed upon or in default of agreement as assessed pursuant to the Legal Profession Act 2004.