Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Metelerkamp (No 2) [2018] NSWCATOD 66 Hearing dates: 12 and 26 April 2018, (written submissions) Date of orders: 08 May 2018 Decision date: 08 May 2018 Jurisdiction: Occupational Division Before: The Hon F Marks Principal Member Decision: 1. The complainant is to pay the costs of the respondent thrown away by reason of the amendment to the proceedings by which the complainant abandoned the allegation that the respondent "failed to provide adequate or appropriate psychological services for patient A" in that she prepared a report for the patient's application for partial permanent disability benefits approximately six weeks after ceasing treatment of the patient and having failed to test and review the patient's "current level of functioning in any objective way since approximately July 2013", such costs to be assessed in default of agreement. 2. The respondent is to pay the costs of the complainant, save for those costs of the complainant incurred in relation to the matter referred to in (1) above, such costs to be assessed in default of agreement 3. Each party is to pay their own costs of these costs proceedings. Catchwords: Health practitioner-costs of proceedings-part of complaint abandoned-held respondent entitled to costs order for costs thrown away-otherwise complainant entitled to costs order Legislation Cited: Health Practitioner Regulation National Law (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Commonwealth of Australia v Gretton [2008] NSWCA 117 Health Care Complaints Commission v Dr Toni Metelerkamp [2018] NSWCATOD 62 Health Care Complaints Commission v Philipiah [2013] NSW CA 342 Category: Costs Parties: Health Care Complaints Commission complainant Dr Toni Metelekamp respondent Representation: Counsel: A Petrie complainant R Mathur respondent Solicitors: Health Care Complaints Commission complainant Catherine Henry Lawyers respondent File Number(s): 2017/00194860 Publication restriction: Non—publication order with respect to the name of any patient or former patient of the respondent or any information which might tend to identify such patient Reasons for decision re-costs application Background 1. In Health Care Complaints Commission v Dr Toni Metelerkamp [2018] NSWCATOD 62 this Tribunal determined that the respondent, Dr Toni Metelerkamp was guilty of unsatisfactory professional conduct pursuant to the provisions of the Health Practitioner Regulation National Law (NSW) ("the Act") in proceedings initiated by the complainant, the Health Care Complaints Commission. Subsequent to the finalisation of the hearing of those proceedings, the respondent made application for a limited costs order in her favour, which was opposed by the complainant. The complainant has sought that the respondent pay its costs of the proceedings. The Tribunal has the benefit of written submissions and submissions in reply from both parties. 2. An application for costs is an ancillary order for the purposes of the Civil and Administrative Tribunal Act 2013 (NSW), and consequently pursuant to the provisions of section 165B(5A) of the Act is to be determined by me sitting alone as the presiding member. 3. The substantial proceedings were commenced by the filing of an application by the complainant on 29 June 2017. The complaint centred on two principal matters. Both concerned the circumstances surrounding and arising out of the treatment by the respondent of a person, referred to in the substantive proceedings as patient A. The first matter alleged that the respondent "failed to provide adequate or appropriate psychological services for patient A" in that she prepared a report for the patient's application for partial permanent disability benefits approximately six weeks after ceasing treatment of the patient and having failed to test and review the patient's "current level of functioning in any objective way since approximately July 2013." The second matter alleged that the respondent had inappropriately entered into a personal relationship with the patient after the professional relationship had ceased. 4. On 26 September 2017 the complainant notified the respondent's solicitors that it no longer pressed the first matter concerning the provision of the report, and that it would seek to amend the proceedings accordingly. The respondent seeks an order that the complainant pay 50% of her costs up to 19 October 2017, the date upon which she filed her response to the proposed amended complaint. Thereafter, the respondent seeks an order that each party bear their own costs. Finally, the respondent seeks an order that the complainant pay her costs associated with this costs application. The complainant rejects these applications, and asks that the respondent pay its costs of the proceedings and of this ancillary costs application. The history of the proceedings 1. In order to deal with the respondent's case it is necessary to have regard to some relevant historical matters. In doing so, with the consent of the parties, I shall have regard to some evidentiary material which was not considered in the substantive proceedings. 2. The substantive proceedings had their genesis in a mandatory notification made to AHPRA by Dr Doron Samuell. His involvement is described in the substantive decision. Acting on information which appears to have been entirely unsubstantiated and was later found to be untrue that the respondent was in an intimate relationship with patient A, Dr Samuell was obliged to make a mandatory notification. He also alleged possible fraud against the respondent arising out of her support of patient A in furnishing a medical report in circumstances where she had entered into a financial arrangement with the patient. Acting on this notification delegates of the Psychology Council of NSW conducted a hearing on 30 July, 2015 constituted under section 150 of the Act to consider whether any action of an urgent nature should be taken. The Decision of the delegates dated 30 July, 2015 noted a discussion with the respondent concerning inter-alia the circumstances in which the medical report had been issued. They expressed concern about the "objectivity" of the report which related to an assessment for workers compensation purposes of the patient's disability for work in circumstances where she had not undertaken "contemporaneous, objective assessments at the time of the report preparation." This concern was stated notwithstanding the explanation given by the respondent that the insurer only required a report from her concerning the patient's condition at the time that treatment ceased. 3. The complaint was referred to the complainant, which retained Mr Sam Borenstein, a clinical psychologist, to provide expert opinion concerning the conduct of the respondent. In a report dated 4 July, 2016 he expressed concern that the respondent had not undertaken contemporaneous assessment and testing at the time that the report was issued on 19 June, 2014. 4. Subsequently, the respondent received a letter from the complainant dated 19 October, 2016 concerning a number of matters, but specifically concerning the circumstances in which the report of 19 June, 2014 about patient A had been written. That letter alleged, on the basis of the report provided by Mr Borenstein that her report had failed to mention the fact that treatment had ceased on 10 April, 2014, had failed to mention that ongoing treatment was being carried out by someone else and alleges that the provision of the report should have been referred to the current therapist. The respondent replied by letter dated 15 November, 2016 in which she made it very clear that she had indeed indicated in her report that she had last seen patient A on 9 April, 2014 and she had referred in her report to the fact that treatment was now being undertaken by another psychologist. Furthermore, the report was directed to provide an opinion at the time that the patient's employment had ceased, and the respondent was the most qualified person to provide that report because employment had ceased whilst the patient was being treated by her. 5. The complainant referred the respondent's letter of 15 November, 2016 to Mr Borenstein for his further opinion by letter dated 4 July, 2017. Mr Borenstein provided supplementary reports dated 21 July and 18 September, 2017 in which, relevantly for present purposes, he withdrew his substantive criticism of the respondent concerning her report of 19 June, 2014. It may be assumed that these reports were the catalyst for the decision taken by the complainant to amend the complaint by deleting any reference to this matter. The power to award costs 1. The costs jurisdiction and power of this Tribunal is conferred by clause 13 of Schedule 5D of the Act which is in the following terms; 13 TRIBUNAL MAY AWARD COSTS [NSW] (1) 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. (2) When an order for costs has taken effect, the Tribunal is, on application by the person to whom the costs have been awarded, to issue a certificate setting out the terms of the order and stating that the order has taken effect. (3) The person in whose favour costs are awarded may file the certificate in the District Court, together with an affidavit by the person as to the amount of the costs unpaid, and the Registrar of the District Court must enter judgment for the amount unpaid together with any fees paid for filing the certificate. (3A) The Tribunal may fix the amount of costs itself or order that the amount of costs be assessed by a costs assessor under the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014 ) or on any other basis. (4) This clause applies instead of section 60 (Costs) of the Civil and Administrative Tribunal Act 2013 1. It is uncontroversial that there is a discretion whether to award costs. Some observations of the matters to be taken into account in the exercise of this discretion are contained within the decision of the NSW Court of Appeal in Health Care Complaints Commission v Philipiah [2013] NSW CA 342. At [42] to [45] Emmett JA (Meagher JA and Beech-Jones J agreeing) said: 42 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. 43 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). 44 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. 45 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. Some further guidance is provided by the NSW Court of Appeal in Commonwealth of Australia v Gretton [2008] NSWCA 117. Hodgson JA (Mason P and Beazley JA agreeing) said [at 121]; 121 In my opinion, underlying both the general rule that costs follow the event, and the qualifications to that rule, is the idea that costs should be paid in a way that is fair, having regard to what the court considers to be the responsibility of each party for the incurring of the costs. Costs follow the event generally because, if a plaintiff wins, the incurring of costs was the defendant's responsibility because the plaintiff was caused to incur costs by the defendant's failure otherwise to accord to the plaintiff that to which the plaintiff was entitled; while if a defendant wins, the defendant was caused to incur costs in resisting a claim for something to which the plaintiff was not entitled: cf Ohn v Walton (1995) 36 NSWLR 77 at 79 per Gleeson CJ. Departures from the general rule that costs follow the event are broadly based on a similar approach. The respondent's submissions concerning the amendment of the proceedings 1. The respondent complained that she had been forced to incur legal costs in defending the proceedings including the allegations concerning her report of 19 June, 2014 in circumstances where there had been a considerable delay on the part of the complainant in referring the respondent's letter of 15 November, 2016 to Mr Borenstein, a delay exceeding seven months. In the circumstances, it was said that it would be "only fair" that the complainant pay 50% of the costs of the respondent up until the date of the filing of her Reply. 2. The complainant referred to the reports of Mr Borenstein of 21 July and 18 September, 2017 and emphasised that the proceedings were amended "some six business days" after receipt of the final report. It was said that in those circumstances the delay in amending the complaint was not unreasonable. This was particularly because the evidence of the respondent was not due to be filed until 13 October, 2017. 3. The submissions of the complainant fail to deal with the primary argument of the respondent, namely that there was, in effect, never any proper basis for having included the allegation concerning the circumstances in which the report was issued in the proceedings. This is because a careful reading of the information given by the respondent at the section 150 proceedings, in her subsequent correspondence, and of the report itself would have disclosed that there was, in effect, nothing improper concerning the circumstances in which the report was issued, and in the report. Furthermore, the complainant's submissions do not deal with the not inconsiderable delay in referring the further information to Mr Borenstein. This is material which should have been provided to him at a much earlier stage. 4. In all the circumstances, having regard to the fact that there never was, in reality, any proper basis for the making of a complaint against the respondent concerning the issue of the report by her, and taking into account also the delay in referring this aspect of the matter to Mr Borenstein, fairness dictates that the respondent should be entitled to her costs thrown away in defending this part of the complaint. 5. However, there is no proper basis upon which I could determine that this should result in the making of a costs order in her favour representing 50% of the total of her costs up until the date of the filing of her Reply on 19 October, 2017. Although the circumstances in which the report was issued included a consideration of the relationship between the respondent and patient A, those circumstances were more confined to those pertaining to the issue of the report itself. The overall relationship of the respondent to patient A was at all times relevant to the underlying proceedings, and it would be unfair to arbitrarily assess the costs relating to the withdrawn particulars concerning the issue of the report as representing 50% of the costs of the respondent to that date. Furthermore, 19 October, 2017 post-dates the date upon which the respondent was informed that this part of the complaint was no longer being pursued. 6. In these circumstances, the respondent should be entitled to a costs order in her favour to the effect that the complainant should pay her costs thrown away by reason of the amendment abandoning the particulars concerning the issue of the report. The respondent's submissions concerning the costs of the overall proceedings 1. The respondent submitted that from 20 October 2017 each party should pay their own costs. The primary basis for this submission was that the respondent had admitted that she was guilty of unsatisfactory professional conduct. Nevertheless, the complainant had pursued an allegation that she was guilty of professional misconduct, which allegation was not sustained in the substantive decision. 2. There are two reasons why I reject this submission. Firstly, this Tribunal is not bound by any determination by the parties about the appropriate findings to be made. Even if the complainant had agreed with the characterisation of the misconduct asserted by the respondent, the Tribunal may nevertheless have come to a contrary position. Accordingly, the matter as then formulated needed to be prosecuted in the course of the substantive proceedings. Secondly, all of the evidentiary matters which formed the basis of the substantive proceedings as amended were relevant to a consideration by the Tribunal of the appropriate protective orders. In all the circumstances, it could not be said that the respondent's success in rebutting any allegation that she was guilty of professional misconduct would disentitle the complainant from a costs order in its favour. 3. The second basis is that the complainant engaged in conduct through the course of the proceedings that would disentitle it to a cost order in its favour. In making this submission the respondent relied on a number of distinct matters, presumably both individually and in the aggregate. 4. The respondent noted that the complainant had asked Mr Borenstein to assume that she had been engaged in an "intimate relationship" with patient A. There was ultimately no basis for any such assumption. The respondent complained that this could have and had tainted his opinion. It was made clear to Mr Borenstein prior to him giving evidence that such an allegation was not being pursued in the proceedings. There is nothing that I could detect in the evidence given by Mr Borenstein that would indicate to any extent that in some way his evidence had been affected by any reference to an intimate relationship. 5. The respondent also noted that Mr Borenstein have been asked to comment on the care and treatment provided by the respondent during the course of her therapeutic relationship with the patient. Again, there is nothing to suggest in his evidence that it impacted in any way upon his overall opinion which formed the basis of the Tribunal decision concerning the lack of propriety in forming the subsequent personal and business relationships. 6. During the course of the hearing the complainant raised the question of possible financial exploitation which had not been previously particularised and, it was said, "had no evidentiary basis." Whilst it is true that such a question was raised, dealing with it did not unduly prolong the hearing. In any event, the nature and extent of the business relationship was a significant matter in the determination of the substantive proceedings and in the formulation of protective orders. 7. The respondent also relied upon the delay occasioned in providing Mr Borenstein with details of the respondent's evidence concerning the circumstances in which the report had been written. This is a matter which I have taken into account in determining to make a partial favourable costs order in favour of the respondent. 8. Finally, in submissions in reply the respondent asserted that given the fact her conduct fell towards "the lower end of the scale in terms of severity" and having regard to the concession that she had made that she was guilty of unsatisfactory professional conduct that the complainant should have either commenced proceedings before the Psychology Council, or sought that the proceedings be referred to the Council, where, presumably, they would have been conducted at lesser expense. This assertion must be rejected because, ultimately, the complainant has a choice concerning the forum in which any complaint is to be dealt with. Given the nature of the complaint of misconduct brought against the respondent, there can be no suggestion that it was inappropriate that proceedings be conducted before this Tribunal. 9. For the above reasons I reject any suggestion that there was any disentitling conduct on the part of the respondent which would result in an adverse costs order to any extent. Furthermore, even though the complainant did not succeed in establishing professional misconduct, as I have previously indicated it was necessary in any event to pursue all of the matters ultimately considered relevant by the Tribunal in determining the substantive proceedings. There is no good reason why the complainant should not have an order for its costs, save those relating to such part of the proceedings as concerned the report issued by the respondent. Additional matters 1. Both parties raised for consideration a number of discrete matters concerning various evidentiary matters which emerged during the course of the substantive proceedings. These included a withdrawal by the respondent of an admission that she had engaged in improper or unethical conduct, an assertion by the complainant that the respondent had sought to take advantage of the patient in the manner in which the business relationship was structured and the manner in which the costs issue was raised by the respondent at the conclusion of the hearing. None of these matters unduly prolonged the hearing of the proceedings, and all of them were dealt with by the Tribunal in the course of the proceedings. On this basis it is not necessary to refer to any of them in determining what are the appropriate costs orders to be made. 2. The complainant also asserted that the respondent had not provided any detailed costing of the amount claimed. It is not necessary to consider this matter in light of the conclusions which I have reached concerning the disposition of these costs proceedings, but I observe that it would not usually be necessary for a party in the position of the respondent to particularise the costs claimed to any extent. This is because such matters are normally dealt with in the course of the negotiation of costs or the costs assessment process. Costs of these costs proceedings 1. Having regard to the conclusions which I have reached concerning the disposition of these costs proceedings, I am of the opinion that it is appropriate in all the circumstances that each party pay their own costs of this aspect of the proceedings. Conclusion 1. Having regard to the conclusions which I have expressed, I make the following orders relating to the payment of costs; 1. The complainant is to pay the costs of the respondent thrown away by reason of the amendment to the proceedings by which the complainant abandoned the allegation that the respondent "failed to provide adequate or appropriate psychological services for patient A" in that she prepared a report for the patient's application for partial permanent disability benefits approximately six weeks after ceasing treatment of the patient and having failed to test and review the patient's "current level of functioning in any objective way since approximately July 2013", such costs to be assessed in default of agreement. 2. The respondent is to pay the costs of the complainant, save for those costs of the complainant incurred in relation to the matter referred to in (1) above, such costs to be assessed in default of agreement 3. Each party is to pay their own costs of these costs 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: 08 May 2018