Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Brush (No. 2) [2015] NSWCATOD 154 Hearing dates: On the papers Date of orders: 21 December 2015 Decision date: 21 December 2015 Jurisdiction: Occupational Division Before: A Britton, Principal - Member Dr K Murnane - Occasional Member Dr S Lake - Occasional Member Dr J Milne - Occasional Member Decision: Mr Brush is to pay the Health Care Complaints Commission's costs. Catchwords: COSTS — principles applying to awarding costs under the Health Practitioner Regulation National Law (NSW) — whether presumption displaced that the successful party is ordinarily entitled to recover its costs Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: Health Care Complaints Commission v Brush [2015] NSWCATOD 120 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 Ohn v Walton (1995) 36 NSWLR 77 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Williams v Lewer (1974) 2 NSWLR 91 Category: Costs Parties: Health Care Complaints Commission (Appellant) Grant Brush (Respondent) Representation: Counsel: A Britt (Applicant) Solicitors: Health Care Complaints Commission (Applicant) File Number(s): 1420365 Publication restriction: NON PUBLICATION ORDER APPLIES IN RESPECT OF PATIENT A REASONS FOR DECISION 1. Earlier this year, the Health Care Complaints Commission (the Commission) referred five complaints (the Complaints) about (then) registered osteopath, Grant Brush to the Civil and Administrative Tribunal of New South Wales (NCAT). The trigger for the Complaints was a notification made by Patient's A treating psychologist, that for a period of about 10 months Mr Brush had engaged in a concurrent therapeutic and sexual relationship with Patient A. 2. The Complaints also included allegations that Mr Brush practised as an osteopath for over two years without holding professional indemnity insurance; falsely declared to the Osteopathy Board of Australia (the Board) that he held professional indemnity insurance; and failed, as required, to notify the Board that he had been charged with a criminal offence and later made the subject of a "criminal finding". 3. We found Mr Brush guilty of "professional misconduct" within the meaning of s 139E of the Health Practitioner Regulation National Law (NSW) (the National Law). We decided to cancel Mr Brush's registration as an osteopath, disqualify him from reapplying for registration for a period of 18 months and to make a "prohibition order": Health Care Complaints Commission v Brush [2015] NSWCATOD 120. 4. The Commission foreshadowed at the commencement of the proceedings its intention to seek an order for costs if the Complaints were found proven. On handing down our decision we invited both parties to make written submissions on the Commission's application for costs. Submissions were received from the Commission. None were received from Mr Brush. 5. For the reasons that follow we have decided to order that Mr Brush pay the Commission's costs of the proceedings. The power to award costs 1. The power to award costs in proceedings where a complaint has been referred to NCAT for determination under the National Law is found in cl 13 of Schedule 5D to the National Law: 13 Tribunal may award costs [NSW] (1) The Tribunal may order the complainant (if any), the registered health practitioner … at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal. (2) When an order for costs has taken effect, the Tribunal is, on application by the person to whom the costs have been awarded, to issue a certificate setting out the terms of the order and stating that the order has taken effect. … 1. The Court of Appeal in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 (Philipiah) considered the exercise of the discretion to award costs in proceedings under the National Law and accepted at [42] that "[a]s a general rule, costs of proceedings before the Tribunal should follow the event". See also Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [85]; Health Care Complaints Commission v Do [2014] NSWCA 307 at [51]; and in relation to a similar but not identical costs provision, Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 (Lucire) and Ohn v Walton (1995) 36 NSWLR 77 at p 79. While as a general rule costs follow the event, factors may exist that militate against the recovery of costs by the successful party: Philipiah at [42]; Lucire at [48]–[52]. 2. The authorities have emphasised that while the discretion not to award costs to the successful party is unfettered it must nonetheless be exercised judicially "according to proper fixed principles and rules of reason and justice, not according to private opinion": Philipiah at [43]. In Philipiah the Court of Appeal observed at [43] that it is "not easy to state the precise principles" that should guide a decision maker in exercising the discretion over costs. The discretion is only to be exercised where there are materials upon which to exercise it (Philipiah at [43]; Williams v Lewer (1974) 2 NSWLR 91 at 95). 3. The presumption that the successful party is entitled to be paid their costs is generally only displaced where there has been some "disentitling conduct" by the successful party: Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 (Oshlack) at [40]. In Lucire at [49]–[53], the Court of Appeal identified three factors that militated against the Commission recovering all its costs in that matter: First, the Commission's lack of success in obtaining findings against the practitioner in respect of professional misconduct. Secondly, the Commission's failure to establish each of the particulars pleaded. Thirdly, oppressive conduct on the part of the Commission in the way in which it prosecuted the proceedings before the Tribunal, such as taking procedural steps that gave rise to unnecessary expense in preparing for the hearing. Should the power to award costs be exercised? 1. Mr Brush failed, as directed by the Tribunal, to file any material in advance of the hearing. It was not until the conclusion of his oral evidence that it became apparent that he admitted the conduct particularised in the Complaints although not its characterisation by the Commission. 2. Except in relation to Complaint 2, particular 9, which we were not satisfied constituted "unsatisfactory professional conduct" within the meaning of s 139B of the National Law, we accepted the Commission's characterisation of the Complaints. We found, as contended by the Commission, that the balance of the conduct the subject of the Complaints constituted "unsatisfactory professional conduct" and taken together, professional misconduct. While in our opinion Mr Brush came "close to the line" we were not satisfied, as asserted by the Commission, that he was "not a suitable person to practice" as an osteopath (s 140 of the National Law). 3. The Commission was largely successful in prosecuting the Complaints. While it was not successful in its characterisation of Complaint 2, particular 9 and its contention that Mr Brush was not a suitable person to practice as an osteopath, in our opinion of itself that does not provide a basis to decide to reduce the costs payable to the Commission. In reaching that conclusion we note each were discrete issues that involved a relatively small proportion of hearing time. 4. As the successful party the Commission has a "reasonable expectation" of receiving its costs", Oshlack at [134]. Mr Brush has not drawn to our attention any factor which might warrant a departure from the presumption that the Commission as the successful party is ordinarily entitled to recover its costs. We did not observe anything in the Commission's conduct of the case to lead us to conclude that it had engaged in the type of "oppressive conduct" referred to by the Court of Appeal in Lucire at [49]-[53]. 5. We have decided that it is fair and reasonable that Mr Brush pay the Commission's costs of the proceedings. 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: 21 December 2015