Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Noore [2018] NSWCATOD 1 Hearing dates: On the Papers Date of orders: 03 January 2018 Decision date: 03 January 2018 Jurisdiction: Occupational Division Before: Cowdroy, ADCJ (Principal Member) Decision: (1) That the orders made in the proceedings be amended to reflect that the respondent is guilty of unsatisfactory professional conduct in respect of complaint 1. (2) That the provisional order for costs be vacated. (3) That the respondent pay 50% of the costs of the applicant of and incidental to the proceedings. (4) Each party is to pay their own costs of this application Catchwords: Costs - unsatisfactory professional conduct - necessity to consider evidence Legislation Cited: Health Practitioner Regulation National Law (NSW); Cases Cited: Arian v Nguyen [2001] NSWCA 5 Goh v Medical Council of NSW [2016] NSWCATOD 92; HCCC v Dinakar [2009] NSWMT 8; HCCC v Dr Mazzaferro [2011] NSWMT 9; Health Care Complaints Commission v Philipiah [2013] NSWCA 342; Latoudis v Casey (1990) 170 CLR 534 Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182; NSW v Stanley [2007] NSWCA 330; Ohn v Walton (1995) 36 NSWLR 77; Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) NSWSC 111; Williams v Lewer (1974) 2 NSWLR 91; Category: Costs Parties: Health Care Complaints Commission (Applicant) Dr Faizur Noore (Respondent) Representation: Solicitors: Health Care Complaints Commission (Applicant) TressCox Lawyers (Rspondent) File Number(s): 2017/00138540 REASONS FOR DECISION 1. By Application for Disciplinary Findings and Orders filed on 9 May 2017, the Applicant ("HCCC") sought orders, inter alia, that Dr Faizur Rahman Noore ("the Respondent"), pursuant to s.149A of the Health Practitioner Regulation National Law (NSW) ("the National Law"), be cautioned, reprimanded or conditions be imposed upon him in his Practice. Alternatively, orders were sought pursuant to s.149C of the National Law to suspend or cancel the registration of the Respondent. The Application relied upon by the HCCC contained three separate complaints concerning the conduct of the Respondent. 2. By its decision delivered on 19 October 2017 the Tribunal found that Dr Faizur Noore was guilty of unsatisfactory professional conduct. However, the Tribunal found that the suspension imposed upon the Respondent pursuant to s.150 of the National Law should be lifted pursuant to s.150G thereof, subject to conditions. The Respondent was ordered to pay the costs of and incidental to the proceedings unless within 21 days of the decision an application was made by the Respondent for a different order. 3. By letter dated 9 November 2017 the Respondent sought a different order in respect of costs. The Respondent provided notification that he sought an order that the Applicant pay his costs of the proceedings. Costs Application 1. The Respondent admitted the particulars referred to in complaint 1, namely that his conduct amounted to unsatisfactory professional conduct and also the particulars contained in complaint 2, namely that he suffered from an impairment. The Respondent states that such concessions were made well in advance of the hearing. Accordingly, the only issue was whether complaint 3 was established. Complaint 3 alleged that the Respondent was not competent to practise the profession of medicine under s.139 of the National Law as the Respondent did not have sufficient physical and/or mental capacity to practise the profession. The particulars to such complaint relied upon the impairments particularised in particular 1 of complaint 2, namely that the Respondent suffered from a substance abuse disorder. 2. Complaint 3 also alleged that the Respondent's impairment was of a sufficient nature and degree to impair the Respondent's mental capacity to practise the profession. 3. The Respondent submits that the evidence before the Tribunal essentially related to complaint 3. The Respondent, his treating psychiatrist, Dr Miller, and his general practitioner, Dr Rogers, were extensively cross-examined in respect of the assertion that Dr Noore was not competent to practise medicine. 4. The Respondent asserts in his submissions on costs that the Tribunal determined that complaint 3 was not proven and that the Respondent had sufficient competent to practise medicine. 5. The Respondent relies upon the decision of the NSW Court of Appeal in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 in which that Court considered that costs should follow the event. The Respondent submits that since complaint 1 and complaint 2 were conceded well before the hearing, and since complaint 3, which was found to be not established, occupied most of the hearing time, the costs should be borne by the HCCC. Alternatively, it is submitted that there should be no order as to costs. 6. In his supplementary submissions concerning costs, the Respondent states that the HCCC, from the outset of the proceedings, made it plain that Dr Noore's registration should be cancelled, a position from which it did not resile throughout the proceedings. 7. Further, the Respondent submits that the critical issue for determination was the Respondent's capacity to practise medicine. Both Dr Miller and Dr Rogers together with the Respondent were extensively cross-examined but the only witness for the HCCC, namely Dr Bruce Westmore, gave no opinion concerning the Respondent's capacity to practise. The Respondent refers to the decision in Goh v Medical Council of NSW [2016] NSWCATOD 92 in which it was found that the practitioner had acknowledged her condition of addiction, yet the Medical Council had steadfastly continued to seek deregistration when it was generally acknowledged by the experts that conditions on registration was appropriate. The Tribunal found that because the primary case brought by the Council failed, there should be no order as to costs. The Respondent submits that there is a factual similarity between his case and that of Goh v Medical Council of NSW [2016] NSWCATOD 92. 8. The applicant has submitted that the respondent admitted some matters and that one complaint was disputed, namely whether the respondent was presently competent to practise the profession. The respondent admitted particulars of impairment contained in complaint 2 namely that the respondent suffered from a depressive disorder and substance abuse disorder. However the respondent maintained that the disorders were in remission. 9. The applicant submits that the respondent's submission assume that the Tribunal's consideration of costs ought to be restricted to the question of proof at the hearing of the complaint which occupied most of the hearing and that only the hearing itself is relevant. The respondent submitted such approach is misconceived. 10. The applicant submits that it prosecuted the proceedings in the public interest and that the orders it sought were essentially protective. Much of the hearing was related to cross examination of various witnesses. The applicant also points to the chronology of events where the respondent initially denied the extent and frequency of his intravenous drug use; that the respondent failed to disclose a drug relapse in March 20016; and that the applicant had before evidence which suggested that the respondent remained "vulnerable". 11. The applicant submits that reliance upon the decision in Goh is misplaced since that was a reinstatement case and the evidence related to the question of reinstatement only and not to the issue of protective orders. Consideration 1. In respect of matters brought before the Tribunal under the National Law, clause 13 of Schedule 5D expressly empowers the Tribunal to award costs in matters brought before it under the National Law. Clause 13(1) provides: "The Tribunal may order the complainant (if any), the registered health practitioner or student concerned, 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 principles concerning the award of costs have clearly been stated by the New South Wales Court of Appeal in HCCC v Philipiah especially at paragraph [42]. There the Court explained, in summary, that is the usual rule, costs should follow the event; that costs are discretionary. Should there be any evidence of oppressive conduct by the prosecutor which led to unnecessary costs, that is a factor for consideration: see Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48]-[52]. Lastly, the award of costs is discretionary, and be based upon materials before the Tribunal: see Williams v Lewer (1974) 2 NSWLR 91 per Rath J at 95C-F. 2. At the outset, it should be recorded that there is no suggestion in these proceedings that the conduct of the applicant was otherwise than proper; there is no evidence of any oppressive conduct which has led to unnecessary costs. 3. It is correct, as the respondent submits, that a finding was made of unsatisfactory professional conduct, being the subject of complaint 1. The remaining two complaints related to findings, sought by the appellant that the respondent suffered from a mental impairment, disability, condition or disorder that detrimentally affected his capacity to practice the profession of medicine: see complaint 2. Complaint 3 alleges that because of his impairment, the respondent was not fit to practise medicine. 4. It would be erroneous to consider that the Tribunal could make findings in respect of complaint 1 in isolation and without regard to the matters referred to in the remaining complaints. The Tribunal had before it substantial material which went to each complaint and the Tribunal was required to consider such material in making its determination. Much of the psychiatric evidence, adduced by each side, required careful analysis following extensive cross-examination of the expert witnesses, especially in view of the divergences of opinion between Dr Miller and Dr Westmore relating to the risk of relapse. Such evidence was relevant to the entire proceedings. 5. The Tribunal concluded that complaint 1 was established. It took note of the remaining complaints. The Tribunal concluded that, provided a strict regime by way of conditions was imposed, the respondent should be able to return to practise. The formulation of such conditions arose from the Tribunal's assessment of complaints 2 and 3, and only on the basis of the conditions which addressed the concerns raised in those complaints did the Tribunal determine that the respondent should be permitted to resume practice. The Tribunal notes that in its findings it referred to the fact that the respondent was guilty of unsatisfactory professional conduct in respect of complaints 1, 2 and 3. In fact, the finding of unsatisfactory professional conduct should have been confined to complaint 1 only. This will be amended in the orders which the Tribunal will make. 6. The principles concerning the award of costs as established in Latoudis v Casey (1990) 170 CLR 534, especially at 543 (per Mason CJ) remain, namely that an award of costs is not punitive but rather are awarded to compensate the successful party against expense to which it has been put by reason of the proceedings. Such principles were expressly extended to tribunals, such as "the Medical Tribunal": see Ohn v Walton (1995) 36 NSWLR 77 per Gleeson CJ at 78; HCCC v Dr Mazzaferro [2011] NSWMT 9 at [67]. See also HCCC v Dinakar [2009] NSWMT 8 at 44. 7. The onus rests upon the losing party to establish a basis for departure from the usual principle: see Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) NSWSC 111; NSW v Stanley [2007] NSWCA 330 at [24]. However, the presumption that the losing party should pay the successful party its costs would usually be dependent upon some disentitling conduct on the part of the successful party: see Arian v Nguyen [2001] NSWCA 5 at [36]. 8. The respondent maintains that, in essence, he was the successful party because the applicant was unsuccessful in seeking orders which would have prevented his right to practise medicine. Prima facie, such submission appears correct. However it does not give due weight to the manner in which the proceedings were necessarily conducted which involved a broad ranging and detailed examination of certain conduct in which the respondent had engaged and whether the respondent had been rehabilitated sufficiently to enable him to practise. In arriving at its conclusion that the imposition of conditions would be an adequate safeguard, the Tribunal was mindful of the failings on the part of the respondent which had resulted in the proceedings. 9. Having taken account of the submissions are both parties, the Tribunal considers that its provisional order for costs should be set aside. The Tribunal considers that there should be some apportionment as although no findings adverse to the respondent were made in respect complaints 2 and 3, there was nevertheless the necessity to consider evidence which was relevant to each complaint. There is some similarity in this matter with the decision in Goh, but in the present proceedings, the evidence for each complaint clearly overlapped and the proceedings raised different considerations. 10. In the exercise of its discretion, the Tribunal considers that the apportionment should be calculated on the basis that whilst an adverse finding was made in respect of one complaint, the applicant properly pursued the remaining complaints which were closely allied to complaint 1. The appellant did not succeed in respect of two complaints. The Tribunal considers that the respondent should pay 50% of the applicant's costs. ORDERS 1. The Tribunal orders: 1. That the orders made in the proceedings be amended to reflect that the respondent is guilty of unsatisfactory professional conduct in respect of complaint 1. 2. That the provisional order for costs be vacated. 3. That the respondent pay 50% of the costs of the applicant of and incidental to the proceedings. 4. Each party is to pay their own costs of this application. ******** 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: 03 January 2018