Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Woods (No 2) [2016] NSWCATOD 99 Hearing dates: On the papers Date of orders: 02 August 2016 Decision date: 02 August 2016 Jurisdiction: Occupational Division Before: A Britton, Principal Member S Kennedy, Occasional Member L Carlin, Occasional Member A Johnston, Occasional Member Decision: Mr Woods must pay the Health Care Complaints Commission's costs of the proceedings as agreed or assessed. Catchwords: PROCEDURE — Costs — General rule — Departure from the "general rule" Legislation Cited: Health Practitioner Regulation National Law (NSW) Medical Practice Act 1992 (NSW) Cases Cited: Health Care Complaints Commission v Do [2014] NSWCA 307 Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Ohn v Walton (1995) 36 NSWLR 77 Health Care Complaints Commission v Woods [2016] NSWCATOD 52 Williams v Lewer (1974) 2 NSWLR 91 Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 Category: Costs Parties: Health Care Complaints Commission (Applicant ) Stephen Woods (Respondent) Representation: Counsel: S Talbert (Applicant) Solicitors: Health Care Complaints Commission (Applicant) Stephen Woods (Respondent in person) File Number(s): 1520152 Publication restriction: It is prohibited to disclose the name of, or any information, or other material that identifies or is likely to lead to the identification of "Patient A". REASONS FOR DECISION 1. In April 2014 (then) enrolled nurse, Steven Woods was involved in an altercation with an acutely ill patient. The patient who had a long history of mental health and substance abuse problems, attacked Mr Woods and another nurse. Mr Woods responded by verbally abusing, punching and kicking the patient in the head. The Health Care Complaints Commission (the Commission) investigated the incident and referred two complaints about Mr Woods to the Civil and Administrative Tribunal of New South Wales (the Complaints) for determination. 2. Following a hearing we found all but one of the particulars of the Complaints proven. In addition, we found Mr Woods guilty of both "unsatisfactory conduct" and "professional misconduct" within the meaning of ss 139B and 139E of the Health Practitioner Regulation National Law (NSW) (the National Law)). We declared that if Mr Woods were still registered we would have cancelled his registration and, in addition, decided to disqualify him from being registered as an enrolled nurse for 12 months from the date of this decision. 3. At the hearing, the Commission made an application for costs. We directed both parties to file and serve brief submissions addressing this application (Health Care Complaints Commission v Woods [2016] NSWCATOD 52 (Woods)). In addition, we invited the parties to comment on whether they consented to the Commission's application being determined "on the papers". 4. In answer to that direction, the Commission filed written submissions in support of its application for costs and advised that it did not object to its application being determined on the basis of written submissions. We received no submissions from Mr Woods. 5. For the reasons that follow we decided to order Mr Woods to pay the costs of the Commission. Power to award costs 1. The Tribunal's power to award costs is conferred by cl 13, Sch 5D to the National Law: 13 Tribunal may award costs [NSW] (1) The Tribunal may order the complainant (if any), the registered health practitioner …, 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. 1. In exercising this power, the general rule is that costs 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]; and, in relation to a similar provision contained in the Medical Practice Act 1992 (NSW), Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 (Lucire) at [48]; and Ohn v Walton (1995) 36 NSWLR 77 at p 79. 2. While costs generally follow the event, factors may exist that militate against the successful party recovering all of its costs: Philipiah at [42]; Lucire at [48]-[52]. The discretion to award costs must 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 acknowledged at [43] that it is "not easy to state the precise principles" to guide a decision-maker in exercising the discretion over costs. The discretion can only 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 receive 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]. A party's capacity to pay is not relevant to the exercise of the discretion to award costs: Lucire at [41]: Philipiah at [42] Mr Woods' participation in the hearings 1. Before considering the submissions made by the Commission, it is necessary to briefly refer to Mr Woods' participation in these proceedings (see Woods at [6] - [13]). 2. Mr Woods failed to attend either of the two directions hearings held before the substantive hearing. Concerned that Mr Woods may not have been notified of those hearings or the substantive hearing, NCAT Deputy President, Her Honour Acting Judge Boland, directed the Commission to file an affidavit setting out the steps taken to serve Mr Woods with copies of the Complaints and the notice of hearing. Shortly before the substantive hearing, Mr Woods contacted the Tribunal and was granted leave to participate in the hearing by phone. 3. Mr Woods participated in the first 90 minutes of the half-day hearing. He confirmed that he had been served with the Complaints and the documents relied upon by the Commission. He informed us that he was unable to attend the hearing in person as he was in West Australia and living out of a car. On learning that he was mistaken in his belief that the proceedings were not of a criminal nature and he was not compelled to attend, he terminated the call. 4. At hearing, Mr Woods repeated what he told hospital investigators shortly after the incident, namely that he had no recollection of the incident apart from being charged at by the patient and attempting to restrain him "rain[ing] blows to my head", (Woods at [29]). In addition, at the hearing Mr Woods claimed he had not worked as an enrolled nurse since the incident and did not intend to return to nursing. He claimed not to have worked since the incident and alluded to having an itinerant life style. 5. The available material indicated that Mr Woods' conduct throughout the incident was uncharacteristic. There was no evidence to suggest that in his eight years working as an enrolled nurse in acute mental health facilities, he had been verbally or physically aggressive towards a patient: Woods at [71]. Should the power to award costs be exercised? 1. The Commission asserts that there was no "disentitling conduct" on its part to warrant a departure from the general rule. In support of its costs application, the Commission points to Mr Woods' failure to take steps to minimise the costs of the proceedings, pointing out that he neither made any admissions, nor indicated that he consented to the Commission's proposed protective orders. Further, it contended that by leaving before the conclusion of hearing, he deprived the Tribunal of the opportunity to assess his level of insight and contrition: relevant considerations to the exercise of its disciplinary powers under the National Law. 2. While Mr Woods has not responded to the Commission's application for costs we have not taken this to indicate that he consents to that application. 3. The Commission was largely successful in these proceedings. Apart from one matter we found all of the particulars of the Complaint proven and we agreed with the Commission's contention that the conduct constituted unsatisfactory conduct and professional misconduct, as those terms are defined by the National Law. Accordingly the Commission has a "reasonable expectation" of receiving its costs. We accept, as asserted by the Commission, that there was no "disentitling conduct" on its part. While relevant, that is not determinative of the issue of costs (Oshlack at [40]). 4. We are left with a sense of unease about the reason Mr Woods failed to participate in these proceedings. The snippets of available information suggest that since the incident Mr Woods may have struggled with his own mental health problems and this may account for his failure to participate in the hearing and/or to respond to the Commission's application for costs. However, on the available material we can but speculate on the reason for Mr Woods' failure to participate in there proceedings. Absent some reliable material on which to exercise the discretion to depart from the "usual rule", we must order Mr Woods to pay the Commission's costs. 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: 02 August 2016