Health Care Complaints Commission v Kesserwani (No. 2) [2018] NSWCATOD 2

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Kesserwani (No. 2) [2018] NSWCATOD 2 Hearing dates: On the papers Date of orders: 03 January 2018 Decision date: 03 January 2018 Jurisdiction: Occupational Division Before: S McIllhatton, Senior Member Dr G Wynn, Senior Member Dr D Kostur, Senior Member Dr C Berglund, General Member Decision: The Practitioner is to pay the costs of the Health Care Complaints Commission as agreed or failing agreement as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). Catchwords: Costs Legislation Cited: Schedule 5D, Clause 13 of the Health Practitioner National Law (NSW) Cases Cited: HCCC v Kesserwani [2017] NSWCATOD 149 Allplastics Engineering Ply Ltd v Dornoch Ltd [2006] NSWCA 33 Dr Douglass v Lawton Pty Ltd (No 2) [2007] NSWCA 90 Arian v Nguyen [2001] NSWCA 5 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Walid Kesserwani (Respondent) Representation: Counsel: Ms Hartstein (Applicant) Mr Downing (Respondent)

Solicitors: Health Care Complaints Commission (Applicant) Meridian Lawyers (Respondent) File Number(s): 2016/00378838

reasons for decision 1. On 23 October 2017 the Tribunal found that Complaints of unsatisfactory professional conduct and professional misconduct were proved against Dr Kesserwani. The proceedings had been initiated by the Health Care Complaints Commission (the Commission) The Tribunal made a number of protective orders to reflect its findings and decision: see HCCC v Kesserwani [2017] NSWCATOD 149. 2. In relation to the question of costs the parties indicated that they wished to provide submissions on the question of costs after the Tribunal's decision was made available to them. In accordance with procedural directions the parties made written submissions on the issue of costs. The issue of costs is now determined on the papers. 3. The Commission seeks an order that Dr Kesserwani pay its costs of the proceedings and submits that there is no basis to depart from the general "rule" that costs follow the event. 4. Dr Kesserwani opposes the Commission's application and argues that the preferable order is to allow the Commission 75% of its costs. His submissions point to the Commission's failure to establish three areas of the Complaint; specifically Complaint 1, Particular 1 and Particular 3 of Complaint 2. 5. Further it was submitted by Dr Kesserwani that a not insubstantial amount of time at the hearing was spent in dealing with documents and cross examining Dr Kesserwani and the expert with respect to issues in those complaints and particulars. Further in respect of Complaint 1 and Particular 3 of Complaint 2 the concessions which were made by the expert in cross examination could have been explored by the Commission prior to the hearing with a view to those aspects of the case not being pressed. 6. The power to award costs in health profession cases is contained in Schedule 5D, Clause 13 of the Health Practitioner National Law (NSW). 7. The purpose of an order for costs is to compensate the person in whose favour it is made and not to punish the person against whom the order is made: see Allplastics Engineering Ply Ltd v Dornoch Ltd [2006] NSWCA 33 at 34; Dr Douglass v Lawton Pty Ltd (No 2) [2007] NSWCA 90 at 22. Generally the presumption will only be displaced where there has been some sort of disentitling conduct on the part of the successful party: see Arian v Nguyen [2001] NSWCA 5 at 36. 8. These principles were re-affirmed by the Court of Appeal in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at 42-45, with Emmett JA (Meagher JA and Beech-Jones J agreeing) stating: "As a general rule, costs of proceedings before the Tribunal should follow the event and mere impecuniosity is not a justifiable reason for departing from that rule. However, there are factors that might militate against the recovery by the Commission of all of its costs in particular proceedings. For example, one factor might be that the Commission failed to obtain findings of professional misconduct alleged, even though it obtained findings of unsatisfactory professional conduct. Another factor might be that the Commission failed to establish all of the particulars of professional misconduct alleged. Where discrete elements of the conduct complained of are not established, that may be relevant. A third factor might be oppressive conduct by the Commission in the way in which it prosecuted the proceedings before the Tribunal, such as taking procedural steps that gave rise to unnecessary expense in preparing for the hearing (see Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48] - [52]). It has not been suggested by the Doctor that any of those factors applied. As the Tribunal observed in its reasons, the question of costs is discretionary. However, the discretion is a judicial one and must be exercised according to proper fixed principles and rules of reason and justice, not according to private opinion. While it is not easy to state the precise principles that are to guide a court in exercising the discretion over costs, the discretion is only to be exercised where there are materials upon which to exercise it (Williams v Lewer (1974) 2 NSWLR 91 at 95). It is important when exercising the discretion to bear in mind that costs are intended to compensate a successful party. Costs are not intended to penalise an unsuccessful party. It is not an appropriate basis for the exercise of the discretion that an order for costs may cause hardship to the party against whom the order is made. The Doctor could have made admissions as to professional misconduct and as to the degree of impairment immediately after he was notified of the complaints. However, he chose not to do so. The normal price to be paid for a practitioner's disputing a complaint and losing is that, unless some disentitling conduct be established on the part of the Commission, the practitioner should bear the Commission's costs, not by way of penalty, but to compensate the Commission for the costs that it has incurred in prosecuting the proceedings in the public interest, over the opposition of the practitioner. 1. In this case Dr Kesserwani disputed that he was guilty of professional misconduct. He has been unsuccessful in that claim. Moreover, Dr Kesserwani did not admit to unsatisfactory professional conduct until shortly before the hearing. 2. Complaint 1, and Particulars 1 and 3 of Complaint 2 which were not proved by the Commission related to the nature of communication and contact between Dr Kesserwani and Patient A. The Tribunal found on the basis of the material that was available to it, Dr Kesserwani did not maintain a clear separation between his professional conduct aimed at meeting the health needs of Patient A and his own personal views and feelings. However the evidence stopped short of supporting a finding of unsatisfactory professional conduct. 3. Significantly the Tribunal found that Dr Kesserwani had not been candid and honest with the Commission. He destroyed text messages that were relevant to the Commission's investigation. He made false representations and gave false information to the Commission about the extent of his contact with Patient A. It was only after phone records were put to him that he admitted that he had lied to the Commission. The matters that the Commission was not able to prove ought to be seen in that light. In prosecuting proceedings in the public interest, it is understandable that the Commission would seek to have the communication between Dr Kesserwani and Patient A examined closely. 4. Although the Commission was not successful on every complaint or every particular overall it was successful and it was successful in proving the majority of the particulars. It was successful in proving both unsatisfactory professional conduct and professional misconduct. 5. The Tribunal is not persuaded by Dr Kesserwani's submissions that the Commission's failure to obtain findings in respect of Complaint 1 and two particulars of Complaint 2 alleging unsatisfactory professional conduct militate against the recovery by the Commission of all of its costs. 6. The Tribunal is not satisfied that any disentitling conduct has been established on the part of the Commission. Nor is the Tribunal satisfied that this is an appropriate case to exercise the discretion to depart from the general "rule". 7. Accordingly for these reasons, the Tribunal has decided to exercise the power to order Dr Kesserwani to pay the Commission's costs, as agreed or failing agreement as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). ​