Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Shah v Health Care Complaints Commission (No 2) [2016] NSWCATOD 102 Hearing dates: On the papers Date of orders: 09 August 2016 Decision date: 09 August 2016 Jurisdiction: Occupational Division Before: A Britton, Principal Member K Eyre, Professional Member B Clarke, Professional Member A Collier, General Member Decision: No order as to costs Catchwords: COSTS –– exercise of the discretion to award costs under cl, Sch 5D to Health Practitioner Regulation National Law (NSW) — application of the "compensatory principle" in reinstatement proceedings PRACTICE AND PROCEDURE — application and submissions made without/outside leave of Tribunal Legislation Cited: Health Practitioner Regulation National Law (NSW) Medical Practice Act 1992 (NSW) Cases Cited: Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 Bale v Mills [2011] NSWCA 226; 81 NSWLR 498 Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 Foots v Southern Cross Mine Management Pty Ltd [2007] [2007] HCA 56; (2007) 241 ALR 32 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complaints Commission v Shah [2013] NSWNMT 1 Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 NT Power Generation Pty Ltd v Power and Water Authority [2004] HCA 48; (2004) 219 CLR 90 Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Ristevski v Medical Council of NSW [2016] NSWCATOD 18 Shah v Health Care Complaints Commission [2014] NSWCATOD 94 Shah v Health Care Complaints Commission [2016] NSWCATOD 68 Category: Costs Parties: Bhavesh Shah (Applicant) Health Care Complaints Commission (Respondent) Representation: Solicitors: NSW Nurses' Association (Applicant) Health Care Complaints Commission (Respondent) File Number(s): 1520217 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 2013, the Nursing and Midwifery Tribunal of NSW (NMT) cancelled Bhavesh Shah's registration as a nurse (Health Care Complaints Commission v Shah [2013] NSWNMT 1) (the Cancellation decision). The following year, Mr Shah unsuccessfully applied to the New South Wales Civil and Administrative Tribunal (NCAT) to be reinstated to the register of nurses: Shah v Health Care Complaints Commission [2014] NSWCATOD 94. Eighteen months later Mr Shah made a second application to NCAT seeking review of the Cancellation decision. In a reserved decision given on 27 May 2016 we reinstated Mr Shah to the register of nurses, subject to a number of conditions (Shah v Health Care Complaints Commission [2016] NSWCATOD 68 (Shah)). 2. The Commission did not oppose Mr Shah's second application but urged the Tribunal to impose a suite of conditions. Mr Shah consented to the imposition of conditions. 3. The Commission now applies for an order for costs. Mr Shah opposes that application and contends that in the circumstances the more appropriate order is that each party bear their own costs. 4. With its consent, we determined the Commission's application for costs on the basis of each party's written submissions without holding a hearing (s 55(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act)). 5. For the reasons that follow we have decided not to grant the Commission's application and order that each party bear their own costs. Power to award costs 1. The Tribunal's power to award costs is conferred by cl 13, Sch 5D to the Health Practitioner Regulation National Law (NSW) (the National Law): 13 Tribunal may award costs [NSW] 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. The Court of Appeal has stated that in applying the discretionary power conferred by cl 13, Sch 5D, 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]. To our knowledge the Court of Appeal has not considered the operation of cl 13, Sch 5D in the context of review proceedings where, as in this case, a reinstatement order is made under s 163B of the National Law. 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]. The Court of Appeal has acknowledged that it is "not easy to state the precise principles" that guide a decision-maker in exercising the discretion over costs: Philipiah at [43]. 3. In Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 241 ALR 32 at [26], the High Court affirmed the statement made by Gaudron and Gummow JJ in Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 (Oshlack), rejecting a submission that there was an "absolute rule" that where the Court has a discretion to award costs it will be exercised in favour of the successful party: There is no absolute rule with respect to the exercise of the power conferred by a provision such as s 69 of the [Land and Environment] Court Act (1979) (NSW), which is in similar terms to cl 13, Sch 5D to the National Law] that, in the absence of disentitling conduct, a successful party is to be compensated by the unsuccessful party. Nor is there any rule that there is no jurisdiction to order a successful party to bear the costs of the unsuccessful party. If regard be had to the myriad circumstances presenting themselves in the institution and conduct of litigation, and to the varied nature of litigation, particularly in the equity jurisdiction, it will be seen that there is nothing remarkable in the above propositions. 1. Commenting on the discretionary power to award costs, the High Court commented in Gray v Richards [No 2] [2014] HCA 47 at [2]: Ordinarily, that discretion will be exercised so that costs are awarded to the successful party, but other factors may have a significant claim on the discretion of the Court. The disposition which is ultimately to be made in any case where there are competing considerations will reflect a broad evaluative judgment of what justice requires. (footnotes omitted) The Commission's application for costs 1. The Commission contends that the compensatory principle that a successful party has a "reasonable expectation" of being awarded its costs, should not be applied in reinstatement cases, citing in support the following passage from Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 (Ameisen) at [90]-[91]. 90.Proceedings of the present kind arise because of the prior misconduct of the applicant, and can be seen as ancillary. While it might be said that the applicant has been 'successful', and thereby should, at the least, not be exposed to the respondent Council's costs, that misunderstands the nature of the respondent's involvement at the inquiry. As noted by the Tribunal in Kazmierczak at [54] (and set out at [76] in Parajuli): '[A]lthough the applicant has been successful, the fact is that it was entirely appropriate for the Medical Board to oppose his application. The Medical Board in such applications plays a highly significant part on behalf of the public and the medical profession in putting applicants to the test and in ensuring that their background or at least their character is properly ventilated: that no applicant is reregistered without a sufficient investigation into what they have done since the deregistration.' 91.Parajuli was a case where the respondent had actively opposed the application, but the applicant had prevailed. The Tribunal continued: 'Because it was entirely appropriate for the application to have been opposed and because it was in effect the applicant's conduct which has brought about this application in any event, he should pay the costs of the application'. 1. The Commission also relies upon the following passage from Mnyandu v Health Care Complaints Commission [2015] NSWCATOD 43 at [135]: This Tribunal agrees with the argument in Donnelly v Health Care Complaints Commission [2014] NSWCATOD 155 at [56-7] that the compensatory principle is not necessarily apposite to reinstatement cases. It is appropriate that an application for a reinstatement order be met by a contradictor to test the evidence and bring submissions in the interest of protecting of the public. The presence of the contradictor advances procedural fairness in refining the issues and avoiding a more inquisitorial approach by the Tribunal that may engender possible apprehensions of bias. Such matters, support the notion that the successful applicant should not, as a matter of course, be awarded costs against the contradictor. 1. The Commission submits that in this matter the discretion to award costs should be exercised in its favour because, first, in participating in the proceedings it fulfilled the role of contradictor and, second, the conditions it developed and proposed were largely accepted by the Tribunal. The Commission contends that without its assistance in the inquiry, which included adducing evidence about Mr Shah's employment history and the operation of the Recency of Practice Registration Standard 2010, the Tribunal would have been unable to give proper consideration to Mr Shah's application for reinstatement. Mr Shah's response to the Commission's application 1. In orders made on 26 May 2016, we directed any party electing to make an application for costs to file and serve its application and any submissions in support within 14 days. We also directed any party opposing the other's application for costs to file and serve submissions in reply (see Shah at [60]). 2. No application for costs was received from Mr Shah within the time frame set out above. However, in submissions in reply to the Commission's application, Mr Shah not only opposed that application but also applied for his own costs. In the alternative, he sought an order that each party bear their own costs. 3. The authorities have considerately identified the problems associated with the practice of filing submissions without, or outside, leave: see for example, NT Power Generation Pty Ltd v Power and Water Authority [2004] HCA 48; (2004) 219 CLR 90 at p 192; Bale v Mills [2011] NSWCA 226; 81 NSWLR 498 at pp 513, 514; Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 at p 330. For these reasons we have decided to disregard Mr Shah's application for costs and will confine our consideration to Mr Shah's alternative submission, that each party should bear their own costs. 4. Mr Shah argues that there was no legislative requirement that the Commission appear in these proceedings and it elected to do so in the knowledge that it may incur costs as a result. He submits that in these circumstances the appropriate order is that each party should bear its own costs. Consideration 1. Whether the discretion to award costs should be exercised in favour of the Commission requires us to consider whether the so-called compensatory principle — that absent some disentitling conduct a successful party is generally entitled to recover their costs — can and should be applied where a reinstatement order is made under s 163B of the National Law. 2. This issue was addressed in Ameisen. There, the Tribunal considered it a misnomer to describe an applicant who is reinstated following an inquiry to review a "relevant order" (an order that a person's registration as a health practitioner be suspended or cancelled or conditions be imposed on their registration: s 163A(4) of the National Law), as having been "successful". Reasoning that this characterisation "misunderstands the nature of the respondent's involvement in the proceedings", the Tribunal pointed out at [90] that reinstatement proceedings "arise because of the prior misconduct of the applicant [practitioner], and can be seen as ancillary [to the original proceedings which resulted in the cancellation of the practitioner's registration]". The Tribunal ordered Dr Ameisen to pay the respondent Council's costs, notwithstanding its decision that he be reinstated to the register of medical practitioners. 3. This approach was followed in Ristevski v Medical Council of NSW [2016] NSWCATOD 18, where the Tribunal concluded at [87]: Provided the respondent conducts its case appropriately, it should be compensated regardless of whether the order is granted or refused. 1. In Ristevski the Tribunal examined a number of cases where on review of the relevant order the applicant practitioner was reinstated but not ordered to pay the costs of the respondent Council or Commission: Mnywandu v Health Care Complaints Commission [2015] NSWCATOD 43, Donnelly v Health Care Complaints Commission [2014] NSWCATOD 155 and Roberts v Medical Council of New South Wales [2015] NSWCATOD 35. The Tribunal concluded that each case had "exceptional features" and the relevant Tribunal had been critical of aspects of the respondent's participation in the inquiry: Ristevski at [74], [78], [82] and [88]. 2. We agree with the view expressed by the Tribunal in Ristevski at [70] that in conducting a review of a relevant order under s 163A of the National Law, there is a public interest in the Tribunal being assisted by the relevant practitioner Council or the Commission (see also Mnywandu at [135]). Without a respondent in this class of matters, there is a risk that the Tribunal might only have available the self-serving evidence adduced by the applicant practitioner. The involvement of, to use the term coined in Ristevski, a "public interest respondent" in review proceedings assists the Tribunal in discharging its obligation to ensure that all relevant material is disclosed so as to enable it to determine all relevant facts in issue: s 38(6)(a) of the NCAT Act. 3. In these proceedings, we were greatly assisted by the participation of the Commission. As a consequence, among other things we had the benefit of information obtained by the Commission about Mr Shah's recent employment history, a highly relevant consideration to our ultimate decision. 4. Were it not for Mr Shah's impugned conduct, which resulted in the referral of the complaints to the Tribunal, the Commission would not find itself in the position of having to participate in these reinstatement proceedings and to incur costs. While this is a powerful argument weighing against the exercise of the discretion to award costs to Mr Shah, we are unable to accept the principle adopted in Ristevski and Ameisen, that absent some disentitling conduct, as a matter of course the discretion to award costs should be exercised in favour of the public interest respondent. Nor are we able to accept the proposition that where the Tribunal is assisted by the participation of the public interest respondent this will give rise to the presumption that the applicant practitioner will pay their costs, irrespective of the outcome of the proceedings. 5. In this case neither party could properly be described as having been "successful" or "unsuccessful". Neither engaged in any disentitling conduct. Both assisted us in reaching in our task of reaching the most appropriate decision having regards to the objects of the National Law. In these circumstances we have decided that the discretion to award costs in favour of the Commission should not be exercised and we make no order as to 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: 09 August 2016