Crickitt v Medical Council of New South Wales (No 3) [2015] NSWCATOD 141

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Crickitt v Medical Council of New South Wales (No 3) [2015] NSWCATOD 141 Hearing dates: 12 and 23 November 2015 (written submissions) Date of orders: 14 December 2015 Decision date: 14 December 2015 Jurisdiction: Occupational Division Before: F Marks ADCJ - Principal Member Dr J Hely - Professional Member Dr S Ieraci - Professional Member Y Rowling - Lay Member Decision: Costs order made Catchwords: Medical Tribunal -appeal against suspension order-appeal substantially dismissed but on basis different to decision under appeal- costs application- discretion to order costs-held respondent entitled to 55% of costs. Legislation Cited: Health Practitioner Regulation National Law (NSW), s150 Cases Cited: Crickitt v Medical Council of New South Wales [2015] NSWCATOD 86 Crickitt v Medical Council of New South Wales (No2) [2015] NSWCATOD 115 Saedlounia v Medical Council of New South Wales [2015] NSWCATOD 53 Category: Costs Parties: Dr Brian Crickitt (Applicant) Medical Council of NSW (Respondent) Representation: Counsel: D Higgs SC and E Pike (Applicant) D Ward (Respondent)

Solicitors: Browns Legal & Consulting (Applicant) Medical Council of NSW (Respondent) File Number(s): 1520001 Publication restriction: Nil

REASONS FOR DECISION

Introduction 1. In these proceedings the appellant, Dr Brian Crickitt, appealed to the Tribunal against the suspension of his registration as a medical practitioner imposed by delegates of the respondent, the Medical Council of New South Wales following upon a charge of murder laid against the appellant arising out of the death of his then wife. In essence, the delegates of the respondent determined that it was in the public interest that the appellant, having been charged with the serious crime of murder, have his registration suspended pending the outcome of the police proceedings. We ultimately determined that the appellant's registration should remain suspended, but for reasons which differed from those adopted by the delegates. After the appeal proceedings had come before us, and after the respondent had closed its case, new evidence became available to the respondent which we determined to admit and to consider for the purpose of determining the appeal proceedings. At the same time we determined that we would reject an application of an interlocutory kind brought by the appellant that we should either cease dealing with the matter or remit it back to the delegates for further consideration. 2. A much more detailed account of the history of the proceedings and our reasoning in determining the interlocutory application may be found in Crickitt v Medical Council of New South Wales [2015] NSWCATOD 86. After admission of the new evidence, and with the benefit of submissions from the parties, we determined to continue to suspend the registration of the appellant by reason of certain matters arising out of and related to his practice of medicine. Our reasons for decision are fully set out in in Crickitt v Medical Council of New South Wales (No 2) [2015] NSWCATOD 115. It will be seen that we determined to limit the period of suspension to six months in order to enable the respondent to pursue any formal complaint against the appellant. In essence, the power to suspend under section 150 of the Health Practitioner Regulation National Law is a temporary protective measure pending the formulation and prosecution of a formal complaint against a health practitioner. We did not apprehend that any such complaint had yet been initiated. 3. In Crickitt (No. 2), we reserved the question of costs and granted liberty to apply, which has now been exercised by the respondent. In essence, the respondent has argued that it was essentially successful in the appeal because the suspension has been continued, albeit for a limited period. On this basis it was said that "the Respondent should be compensated for the costs incurred in so acting to protect the public interest and the health and safety of any person or persons." 4. The appellant resisted the making of any costs order against him on two bases. The first was that because a time limitation had been imposed on the suspension in lieu of suspension for an indefinite period, the appellant had had partial success in the appeal proceedings. The second was that the nature and substance of the proceedings had altered dramatically after the new evidence had been admitted, and there was a substantially different basis upon which suspension was ultimately sought by the respondent.