Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Emery (No. 2) [2017] NSWCATOD 23 Hearing dates: On the papers Date of orders: 16 February 2017 Decision date: 16 February 2017 Jurisdiction: Occupational Division Before: R Titterton, Senior Member M Constable, Professional Member L Burns, Professional Member B Smith, General Member Decision: (1) The respondent pay 33% of the Commission's costs of the proceedings. (2) The Commission pay 67% of the respondent's costs of the proceedings. Catchwords: COSTS – Occupational Division – Health Practitioner List – differential costs order - where complaints of unsatisfactory professional conduct and professional misconduct not proven – where complaint of impairment proven – broad brush approach Legislation Cited: Civil and Administrative Tribunal Act 2013 Health Practitioner Regulation National Law NSW No 86a Cases Cited: Anstee v Jennings [1935] VLR 144 Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 Harrington Estates (NSW) Pty Ltd t/as Harrington Grove Country Club v Turner [2016] NSWCA 369 Health Care Complaints Commission v Emery [2017] NSWCATOD 11 Health Care Complaints Commission v Phlipiah [2013] NSWCA 342. Latoudis v Casey (1990) 170 CLR 534 Monie v Commonwealth of Australia (No.2) [2008] NSWCA 15. Qasim v Health Care Complaints Commission [2015] NSWCA 282 Waters v P C Henderson (Australia) Pty Ltd (NSW Court of Appeal, 6 July 1994, unreported) Category: Principal judgment Parties: Health Care Complaints Commission (Complainant) Daniel Travis Emery (Respondent) Representation: Counsel: A Petrie (Health Care Complaints Commission) (Complainant) Solicitors: D Emery (Respondent in person) File Number(s): 1620049 Publication restriction: Pursuant to Schedule 5D cl 7 of the Health Practitioner Regulation National Law publication of the name of the patient in the Complaint (that is Patient A) is prohibited. REASONS FOR DECISION Introduction 1. For the reasons published on 24 January 2016, in Health Care Complaints Commission v Emery [2017] NSWCATOD 11, the Tribunal: 1. Dismissed a complaint of unsatisfactory professional misconduct (Complaint One); 2. Dismissed a complaint of professional misconduct (Complaint Two); and 3. Upheld a complaint of impairment (Complaint Three), against the respondent. 1. At the conclusion, of its reasons, the Tribunal noted that this was a costs jurisdiction, and that the usual rules that costs follow the event: Health Care Complaints Commission v Phlipiah [2013] NSWCA 342. The Tribunal indicated that it proposed to order that: 1. The respondent pay 33% of the Commission's costs of the proceedings. 2. The Commission pay 67% of the respondent's costs of the proceedings. 1. The Tribunal allowed each party time to file submissions if either sought some other order. Commission's submissions 1. The Tribunal received submissions from the Commission on 30 January 2017. After setting out the legal principles relevant to the award of costs when the Tribunal sits in the Occupational Division, the Commission submitted that: 1. Although there were three complaints in the Commission's case, they concerned only two issues: the respondent's conduct on 5 July 2014 and the respondent's impairment. The Commission was successful in the latter. 2. The evidence concerning the events of 5 July 2014 was largely documentary, although hearing time was taking up with this issue in the form of cross-examination of Patient A and witnesses from the St Vincent's Hospital. Hearing time and examination of witnesses was also concerned with the respondent's employment and drug taking history, as well as his actions to date including examination of the respondent's parents and Dr Walker. The Commission's lengthy cross-examination of the respondent also focused on the issue of impairment and insight. 3. The respondent's evidence was evasive, and his non-responsive answers in cross-examination led to the proceedings being protracted. The respondent's evidence generally, particularly his lack of insight, assisted in the Tribunal finding that he was impaired, and in imposing conditions on the respondent's registration. 4. In circumstances where the Commission was successful on one of two issues, impairment, and where the length of the proceedings was devoted in large part to issues of impairment and insight, the Commission submits that the appropriate order for costs is that the Commission be compensated for 50% of its costs and likewise that the Commission pay 50% of the respondent's costs. Respondent's submissions 1. The Tribunal received submissions from the respondent on 2 February 2017. The submissions of the respondent relevantly included the following: 1. The costs are fair and appropriate considering the fact that the Commission sought to prosecute the respondent on three separate complaints, and only one was proven. 2. The respondent was unrepresented and therefore not able to claim any expenses for lost wages, travel or accommodation to attend the Tribunal. 3. The proceedings would have concluded much earlier but for the unavailability of Patient A. At the least an additional day had to be scheduled to accommodate Patient A (namely 17 October 2016). This was not the fault of the respondent. 4. Complaints One and Two "without question" took up the majority of the hearing time, including the extra sitting on 17 October, 2016; 5. Complaint Three took up less than two hours of the other three days including Dr Kipling Walker's evidence by phone. 6. In light of the Tribunal's comments in its decision regarding Patient A's conflicting statements, the lack of any other witness to the events, and the Commission's own expert's comments that "if the respondent's version of events was correct the care provided does not invite strong criticism and was consistent with what reasonably was to be expected of a practitioner", the Commission should have been able to deduce Complaints One and Two could not be proven. 7. The Commission's failure to consider these issues prolonged the hearing added excessively to the costs. 8. It was hard to believe that the Commission continued to obtained statements from Patient A as late as 23 months after the date of the complaint. 9. Patient A admitted under cross examination that he did not write or prepare some of the signed statements presented in evidence. 10. Considering the length of time it has taken the Commission to bring the prosecution before the Tribunal and given its experience in such matters, the Commission should have been aware of the contradictions in Patient A's statements, and that it was "incredible" that the Commission could not see the "conflictions" in Patient A's statements. Commission's submissions in reply 1. The Tribunal received the Commission's submissions in reply to the respondent's submissions on 9 February 2017. 2. Broadly speaking, the Commission submits that there is no foundation to many of the respondent's submissions. For instance, the Commission submits that there is no foundation to the respondent's claim that Patient A was unavailable, and explains that Patient A was hospitalised for the first two hearing days, and that in lieu of the third hearing day the matter was relisted for 17 October 2016. The Commission asserts that there was no increase in hearing time as a result of the unavailability of Patient A, with the matter proceeding over three days as originally anticipated and that there were no additional costs incurred. 3. In relation to par [8] of the respondent's submissions, where he criticizes the Commission for pursuing Complaints One and Two, the Commission submits that the Tribunal was only able to come to its findings to dismiss Complaints One and Two after testing the evidence of Patient A and the other hospital witnesses. The Commission submits that at all times the Commission had an arguable case with respect to Complaints One and Two and that the Complaints, had they been proven, related to very serious conduct which was alleged to have occurred with respect to a patient in the respondent's care. The Commission submits that Complaints One and Two had reasonable prospects of success. Further, the Complaints raised an arguable case, there was a serious conflict about the evidence between that of Patient A and the respondent, and there was a question of credit in relation to the respondent. 4. The Commission further submits that the issues with respect to Patient A were not an isolated matter in the proceedings, and that the respondent's conduct prior to the incident with Patient A was also a significant issue, giving rise to numerous suspensions and significant conditions being imposed on his employment with the Hospital. Prior to the incident with Patient A, there were previous issues with respect to the Respondent's drug taking behaviour, which had brought him to the attention of the Hospital, including, but not limited to, two positive drug test results. 5. In particular, the Commission disputes the respondent's submission that "Complaints [One and Two] without question took up the majority of the hearing time, including extra sitting on 17 October, 2016" and submits that a significant proportion of the hearing centred on the respondent's conduct, fitness to practice and lack of insight, as well as the issue of impairment. It is on this basis that the Commission seeks an equal apportionment on costs. Consideration 1. The Commission accurately set out in its submissions the applicable legal principles relating to the award of costs in this jurisdiction. These principles include the following: 1. The Tribunal has a discretion to order any party to pay costs to another person: Sch SD, cl 13 of the Health Practitioner Regulation National Law; 2. The starting position in this jurisdiction is that costs follow the event, and that generally the successful party is entitled to be compensated for its legal costs: Health Care Complaints Commission v Philipiah [2013] NSWCA 342. In that decision, the Court of Appeal noted at [42] - [46] that "as a general rule, costs of proceedings before the Tribunal should follow the event" and that "there are factors that might militate against the recovery by [the successful party] of all of its costs in particular proceedings". 3. It is not enough that the decision maker believes the unsuccessful party acted properly or reasonably or had a proper basis for bringing the complaint: Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [87]; Anstee v Jennings [1935] VLR 144 (where Mann J said of dismissal of a criminal charge, "... the order for costs ... should have nothing to do with the reasonableness of the informant 's action. It is a matter of giving a proper indemnity to a successful defendant Latoudis v Casey (1990) 170 CLR 534, eg per Mason CJ at 542-543. 1. The Tribunal's overall impression was that the preponderance of the hearing was occupied with Complaints One and Two, in which the Commission was ultimately unsuccessful. The written evidence was predominantly concerned with those complaints. The Commission's view is that that at part of the third hearing day was occasioned by the unavailability of Patient A (albeit due to hospitalization). 2. We accept that Commission had a proper basis on which to bring Complaints One and Two, and that the allegations were arguable . However, there were serious difficulties in the written evidence of Patient A, to which we referred in the principal reasons. These included that his written evidence went through three iterations after his first handwritten statement, over a two year period, and that there are critical differences between these accounts. These differences were discussed by the Tribunal at [37]. As we stated at [44]: It was clear that there are unexplained discrepancies between the various versions of events set out in the four statements of Patient A on which the Commission relies. The Tribunal has no reason to believe that Patient A was anything other than an honest witness who was trying to assist the Tribunal. However, no explanation was offered by the Commission as to how Patient A's varying accounts of the events of 5 July 2014, given over some two years, could be read together, or be accepted by the Tribunal to enable it to make findings in terms of the alleged particulars. 1. As we concluded, given that: 1. Patient A's own evidence was that at the time of these events he was "half asleep", or "in and out of sleep"; 2. Patient A was receiving morphine for post-operative pain at the time of the alleged events; 3. Patient A's second, third and fourth statements were signed approximately seven, sixteen and twenty four months after the events in question; 4. Patient A did not actually see the respondent open the morphine chamber, and does not know how he could have done so; 5. there was no independent corroboration of the events as described by Patient A; 6. the respondent had been consistent in his denials of the conduct alleged, and consistent in his own explanation of the events in question, the Tribunal was not satisfied that Patient A's evidence should be accepted to support findings establishing either of Complaints One and Two. The matters referred to above, including the inconsistencies of the events alleged in the various statements, and Patient A's own level of consciousness of the time of the events ("in and out of sleep", consistent with taking morphine) militated against the Tribunal accepting his evidence to establish either complaint, save for where it was corroborated. 1. In the view of the Tribunal, it could not be said that the Commission has substantially succeeded: see Harrington Estates (NSW) Pty Ltd t/as Harrington Grove Country Club v Turner [2016] NSWCA 369 at [72]. While the Commission did succeed on Complaint Three (impairment), it failed on Complaints One and Two, serious complaints which could have resulted in the respondent's deregistration or suspension from practice as a nurse. True it is that these Complaints concerned the same factual matter, but the Tribunal considers that the submissions that a "significant proportion of the hearing centred on the respondent's conduct, fitness to practice and lack of insight, as well as the issue of impairment", and that that is the basis on which an equal apportionment of costs is sought, understates the amount of hearing time occupied by examination concerning the respondent's conduct, fitness to practice and lack of insight. 2. The usual circumstance in which a court will deprive the successful party of the costs relating to an issue on which the successful party lost, is when that issue is clearly dominant or separable: Monie v Commonwealth of Australia (No.2) [2008] NSWCA 15. As the Court of Appeal there stated at [64]: In Waters v P C Henderson (Australia) Pty Ltd (NSW Court of Appeal, 6 July 1994, unreported) Mahoney JA said, at 4-5: "In my opinion the principles in this regard are properly stated in the Supreme Court Act and Rules. S76 of the Supreme Court Act provides that the Court has a discretion with full power to determine by whom and to what extent costs are to be paid. In the Rules, Pt52 r11 provides that: "If the Court makes any order as to costs, the Court shall, subject to this Part, order that the costs follow the event, except where it appears to the Court that some other order should be made as to the whole or any part of the costs." In the notes to the Rules, Pt52.11.2, the following appears: "Where the proceedings involve multiple issues the application of the rule that costs follow the event may involve hardship where a party succeeds on some issues and yet fails on others. Particularly is this so where, for example, a defendant succeeds on issues that occupied the bulk of the time taken by the proceedings. Nevertheless unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed." 1. The Tribunal considers that the matters the subjects of Complaints One and Two were the dominant issues in the proceedings. 2. As the Court of Appeal noted in Harrington Estates at [72], exercising the discretion as to costs on an issue by issue basis can produce complexity and disputation. The Tribunal considers that in determining the proper costs, the appropriate approach is a broad-brush approach: Harrington Estates at [72]; Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 at [18] - [19]). 3. As the Commission noted in its reasons for decision, the written evidence and the hearing time was overwhelmingly concerned with Complaints One and Two, although a substantial part of the cross examination did concern the respondent's drug taking and attitude to drugs. Therefore, the Tribunal considers that appropriate order as to costs is that foreshadowed in its reasons of 24 January 2017. Orders 1. The Tribunal orders: 1. The respondent pay 33% of the Commission's costs of the proceedings. 2. The Commission pay 67% of the respondent'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: 16 February 2017