Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Eather v Health Care Complaints Commission [2017] NSWCATOD 42 Hearing dates: 31 October 2016 Date of orders: 28 March 2017 Decision date: 28 March 2017 Jurisdiction: Occupational Division Before: J Millbank, Senior Member Decision: 1. The Application is dismissed pursuant to s 55(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW); 2. A non publication order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting disclosure or publication of the name of the patient in the HCCC evidence; 3. Pursuant to cl 13(3A) of Sch 5D of the National Law the Applicant is to pay the HCCC costs in the amount of $4772. Catchwords: Costs ‒ application for reinstatement by de-registered practitioner ‒ application withdrawn when matter part heard. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) ss 55; 64 Health Practitioner Regulation National Law 2009 (NSW) ('The National Law') ss 145C; 145I; Sch 5D cl 13(3A) Cases Cited: Donnelly v HCCC [2014] NSWCATOD 155; HCCC v Eather (No 1) [2011] NSWCHT 1; HCCC v Eather (No 2) [2011] NSWCHT 2; HCCC v Eather (No 3) [2013] NSWCHT 2 HCCC v Philipiah [2013] NSWCA 342; Oshlack v Richmond City Council (1998) 193 CLR 72; Category: Costs Parties: Paul Matthew Eather, (Applicant) Health Care Complaints Commission (Respondent) Representation: Counsel: Mr Kauffman (Applicant - in part), The Applicant appeared for himself in part Mr Britt (Respondent) Solicitors: Joseph G. Capogreco & Associates, (Applicant - in part), Applicant self-represented in part Health Care Complaints Commission (Respondent) File Number(s): 2016/00378705, 1620143 Publication restriction: Under s 64 of the Civil and Administrative Tribunal Act 2013 an order prohibiting disclosure or publication of the name of the patient in the HCCC evidence. REASONS FOR DECISION Introduction 1. This decision addresses the issue of costs concerning a part-heard and then abandoned application for reinstatement by a health practitioner whose registration was previously cancelled for misconduct. Background 1. In 2011 Mr Eather had his registration cancelled by reason of professional misconduct with orders that he not apply for reinstatement for a period of three years and a prohibition order preventing him from providing health services: HCCC v Eather (No 1) [2011] NSWCHT 1; HCCC v Eather (No 2) [2011] NSWCHT 2. 2. The practitioner made an application on 24 May 2016 to the Tribunal seeking reinstatement as a registered Chiropractor pursuant to sections 163A and 163B of the National Law. 3. At a Directions hearing on 22 July 2016 a timetable for service of documents was established and a hearing was set down for two days on 31 October 2016 and 1 November 2017, preceded by a case conference on 17 October 2016. 4. On 17 August 2016 the applicant sought an extension of time to serve his documents and reply, which was consented to by the HCCC and granted by the Tribunal. 5. At the case conference of 17 October 2016 the practitioner was self-represented. The Tribunal drew Mr Eather's attention to the statutory provisions concerning reinstatement and, specifically, to the fact that s 163C provides that a review is not an appeal of the original decision, or a review of any of the findings in the decision, but is rather to determine whether the order remains appropriate at the time of the review. 6. A further Directions hearing was listed 27 October 2016 to address the issue of additional material filed by the Applicant. At that Directions hearing the Applicant was represented by Counsel. Counsel for Mr Eather made an application to vacate the hearing dates on the basis that he had only recently been engaged and that both preparation time and further evidence were required. 7. The application to vacate the hearing dates was denied with ex tempore reasons given, including that the Applicant had ample opportunity to engage legal representation and prepare evidence prior to 27 October 2016, having made his application in May 2016 and agreed to a timetable and hearing dates in July 2016. 8. Counsel sought to commission an additional report from Mr Reed, a psychologist whose report was already in the Applicant's evidence. In effect this required Mr Eather to attend upon Mr Reed the following day, a Friday, such that a further report prepared on that same day in order could be served on the HCCC that day and Mr Reed give oral evidence the following Monday. This course was not opposed by the HCCC, and the Tribunal indicated that it would allow the very late admission of this additional evidence, allowing time for the HCCC to respond if necessary. 9. On 28 October 2016 solicitors for the Applicant wrote to the Tribunal seeking to have the matter urgently re-listed for Directions. At Directions held on 28 October 2016 Counsel for the Applicant again applied for vacation of the hearing dates, this time on the basis that Mr Reed was ill and would not be available for up to three months. 10. A/DCJ Boland vacated the first day of the hearing, 31 October 2016, but ordered the second day to proceed with the HCCC witness. Her Honour gave ex tempore reasons which included consideration of the fact that the Tribunal was already constituted and that travel for the witness had been arranged, such that it was most efficient and fair to part-hear the matter and then set a new date for the Applicant's evidence when his witness was available, or an alternative witness engaged. 11. The Applicant consented to pay the HCCC's costs thrown away for the 31 October 2016 hearing date, and her Honour made such order on 28 October 2016. 12. The fully constituted Tribunal sat on 1 November 2016 and heard opening submissions from both parties and the evidence of the HCCC witness. The witness was a former patient of the practitioner. The Applicant required the witness for cross examination. 13. The patient had made a notification to the HCCC about the practitioner in 2013, concerning conduct which had occurred prior to his deregistration. The National Law s 163C(3) requires the Tribunal to take into account any complaint made or notified to a Council or National Board whether or not the complaint was referred under Subdivision 2 of Division 3 or any other action taken. 14. The hearing was then adjourned and a further directions date agreed upon by the parties and, through later correspondence with the registry, a further hearing date in April 2017 was set down. 15. On 2 February 2017 the Applicant wrote to the Tribunal seeking to withdraw his application, citing financial pressures. 16. On 9 February 2017 the HCCC made written submissions on costs. The Applicant was given until 13 March 2017 to file written submissions in reply on costs, and did so. Submissions 1. The HCCC submitted the discretion to award costs is not limited to cases where the matter has proceeded to a final determination. 2. The HCCC noted that, as the application had been withdrawn, rather than determined, the general approach of costs following the event, articulated in HCCC v Philipiah [2013] NSWCA 342 at [42], is not strictly applicable. 3. The HCCC position was that it had been put to expense in the course of its duty to protect the public interest, and had not engaged in any conduct during the course of the proceedings which could be considered as disentitling it from recovering costs. 4. The HCCC further submitted that applications such as this one which do not proceed to finality require response involving the allocation of public resources on the part of both the Tribunal and the Commission. An order of costs in such circumstances serves to recognize this circumstance and reflects the view that the taking of such steps by an applicant without finalization, while not being seen in any way as imposition of a penalty, ought to lead to adequate arrangements for recompense. The existence of such consequences, while not suggested as a deterrent to persons pursuing lawful applications also encourages applicants to ensure that applications and proceedings are well considered, in particular where such proceedings have been brought and withdrawn on more than one occasion. 5. The HCCC noted that the Applicant had brought a previous reinstatement application in 2015 which was also withdrawn prior to hearing, and on that prior occasion the Commission did not seek an order for costs in that matter, despite incurring costs. Further, it noted that the Applicant had the benefit of legal representation for the purposes of the current proceedings and should be taken to be cognizant of the costs implications of his late applications. 6. The Commission sought an order for costs in a fixed amount. It noted the decision of the Chiropractic Tribunal in HCCC v Eather (No 3) [2013] NSWCHT 2 determining quantum of costs some 18 months after a costs order was made in favour of the Commission, and submitted that an order in a fixed amount was appropriate to avoid the parties and the Tribunal incurring further unnecessary costs in this matter. 7. The HCCC submission included a breakdown of the costs for counsel and instructing solicitor for 31 October and 1 November 2016, amounting to $4,772. The HCCC noted that the amount did not represent the totality of costs incurred by the Commission as it did not include its costs of preparing its documents, photocopying, preparation of correspondence, witness expenses for travel, meals and accommodation, nor its costs associated with the directions hearings. 8. The Applicant authored his own submissions in relation to costs, the bulk of which sought to contest the correctness of the orders of 27 and 28 October 2016 denying his applications for adjournment, and the costs order of 28 October 2016, by reference to principles of natural justice and procedural fairness. 9. Concerning the costs incurred on 1 November 2016, the Applicant submitted that the HCCC had demonstrated a disregard for due process, procedural fairness, the administration of justice, and the rule of law. Specially, he contended that the HCCC had not acted 'expeditiously' as required by s 145 of the National Law; as the complaint from the witness was received by them on 13 August 2013 and they did not immediately inform him of it. In effect, the Applicant argued that the HCCC's failure to launch an immediate investigation into that complaint meant that it was he who 'was forced to throw money away on inadmissible allegations.' 10. The Applicant further submitted that as the HCCC had characterized the matter as 'a public law action' the 'loser pays' principle should not apply, citing Oshlack v Richmond City Council (1998) 193 CLR 72 and an unimplemented recommendation of a report of the Australian Law Reform Commission. Reasons for decision 1. The question of costs for the vacated hearing day of 31 October 2016 has already been determined, indeed was consented to by the Applicant, and the procedural rulings related to it were not the subject of appeal. Therefore it is only the issue of costs for 1 November 2016 that remains to be addressed. 2. The Commission's role in re-instatement applications is to assist the inquiry by testing the evidence of the Applicant, bringing evidence before the Tribunal of any other complaint made against the practitioner and highlighting issues that go to the practitioner's fitness to practice. The HCCC undertook this role properly with no disentitling conduct. 3. The Tribunal must take into account other complaints against the practitioner under s 163C(3). As the communication from the patient was made after the practitioner had been deregistered the HCCC was not obliged to investigate or to notify the practitioner or the relevant council at the time: National Law ss 145C, 145I; Health Care Complaints Act 1992 (NSW) s 10. The matter was referred for investigation by the HCCC in August 2016 as a direct result of these proceedings; the Applicant was notified of this in writing on 23 September 2016 and provided with both a copy of the patient's statement and copies of patient records to enable him to respond. There was nothing improper in this course. 4. Her Honour A/DCJ Boland determined that the hearing date of 1 November 2016 should be retained. The Tribunal sat on that day and the evidence of the patient was heard; none of it was objected to and none of it was ruled inadmissible. 5. The Applicant was given considerable latitude in the timing of submission of his documents, submitting additional evidence at a very late stage and in setting down a subsequent hearing day to allow for the availability of one of his witnesses, or engagement of an alternate witness to address the same issue. He was also legally represented at the time. The Applicant's complaints of lack of procedural fairness are not founded. 6. The Applicant's submissions on public law actions misapprehend the public interest in disciplinary proceedings and in reinstatement proceedings in particular. 7. In Donnelly v HCCC [2014] NSWCATOD 155 the Tribunal noted that the compensatory principle 'is not necessarily apposite to reinstatement cases' in which: [I]it has been the prior criminal actions, professional misconduct, professional incompetence or other actions rendering them not a suitable person to be registered to practise a particular health profession that has caused the need for the application for a reinstatement order. It is appropriate that at the inquiry triggered by the application for a reinstatement order that there be a contradictor to test the applicant's evidence, bring evidence itself in cases where that is appropriate or is effectively required by s 163C(3) of the National Law and to assist NCAT with submissions about relevant matters. This provides procedural fairness to the applicant first by ensuring that he or she knows what matters they have to deal with beyond those that they wish to put in support of their application. It also avoids NCAT having to pursue relevant matters unwelcome to the applicant directly with the applicant leading to possible apprehensions of bias on the part of the applicant and ensures transparency during the inquiry process. These considerations, and possibly others, give the basis for not awarding costs to an applicant and against the contradictor where the applicant succeeds in obtaining a reinstatement order from NCAT. On the other hand it does not necessarily follow that in addition to bearing his or her own costs an applicant should also pay the costs of the contradictor as another expense to be incurred in the process of seeking to return to a health profession from which they have been ejected by cancellation of their registration. … [56-58] 1. An extensive review of the case law in Donnelly led to the conclusion that the applicable costs principles are flexible and that 'the unfettered nature of the discretion is perhaps the primary principle' (at [65]). In that matter, involving a successful application for reinstatement, the Tribunal declined to make a costs order. 2. Every reinstatement case occurs as a consequence of the original proven and serious misconduct of the practitioner, which may in some circumstances tip the balance in favour of costs to the contradictor even if the applicant succeeds. 3. The HCCC is entitled to their costs for 1 November 2016. An order for costs of 31 October 2016 has already been made. An order of a fixed amount is the most efficient and fair way to proceed, and the modest amount requested by the HCCC is granted. Orders 1. The Application is dismissed pursuant to s 55(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW); 2. A non-publication order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting disclosure or publication of the name of the patient in the HCCC evidence; 3. Pursuant to cl 13(3A) of Sch 5D of the National Law the Applicant is to pay the HCCC costs in the amount of $4772. ********** 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: 28 March 2017