Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Joffe [2018] NSWCATOD 148 Hearing dates: On the papers Date of orders: 03 September 2018 Decision date: 03 September 2018 Jurisdiction: Occupational Division Before: R Titterton, Principal Member J Haigh, Senior Member P Walker, Senior Member Dr P Macneill, General Member Decision: (1) Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) a hearing is dispensed with. (2) The respondent to pay the applicant's costs, as agreed and failing agreement as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). Catchwords: COSTS – where Health Care Complaints Commission successful, respondent does not appear but does not admit complaints Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: Arian v Nguyen [2001] NSWCA 5 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Joffe [2018] NSWCATOD 121 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 NSW v Stanley [2007] NSWCA 330 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Hugh Ian Joffe (Respondent) Representation: Counsel: Mr Britt (respondent) Solicitors: Health Care Complaints Commission (Applicant) Colin Biggers & Paisley (respondent) File Number(s): 2017/00379823 Publication restriction: Nil REASONS FOR DECISION 1. On 2 August 2018, the Tribunal ordered that: 1. the respondent's registration be cancelled; and 2. the respondent may not apply for a review of that order for a minimum period of four years, see Health Care Complaints Commission v Joffe [2018] NSWCATOD 121 (the primary decision). 1. As we noted at [95] of the primary decision, the Commission foreshadowed an application for costs. As we noted, this is a costs jurisdiction, and if an applicant is successful, then usually costs follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342; Qasim v Health Care Complaints Commission [2015] NSWCA 282. 2. As we noted at [98], our preliminary view was that the respondent should pay the Commission's costs. However, we granted leave for the parties to file submissions on the matter. 3. The respondent filed his submissions on or about 16 August 2018. In summary, he: 1. accepted that, as a general rule, the costs of the proceedings before the Tribunal should follow the event; 2. submitted that there be no order as to costs, given that: 1. he sought to surrender his registration but was unable to do so; and 2. the Council and the Psychology Board was at all times aware of his intention to retire and to surrender his registration; 3. he indicated prior to the hearing that he did not propose to give evidence at the hearing and that a hearing was therefore unnecessary. 1. In addition, the respondent submits that there was a "threshold difficulty", namely that cl 13 of Sch 5D of the Health Practitioner Regulation National Law (NSW) requires the Tribunal to determine the amount of any costs, and that there is presently no evidence upon which the Tribunal can proceed to determine the amount of costs, if any, to be paid. Consideration 1. Both parties agree that the usual or general rule is that the costs of the proceedings before the Tribunal should follow the event, in other words, the successful applicant will be awarded its costs. We accept the applicant's submission that there is an onus on the losing party, here the respondent, to establish a basis for any departure from this usual rule: Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111 at [10]; NSW v Stanley [2007] NSWCA 330 at [24]), and that this general presumption may be displaced where there has been disentitling conduct on the part of the successful party: Arian v Nguyen [2001] NSWCA 5 at [36]. 2. In Philipiah at [42]-[45], the Court of Appeal considered these principles and examined the "factors that might militate against the recovery by the Commission of all of its costs in particular proceedings". Emmett JA, with Meagher JA and Beech-Jones J agreeing, considered these factors and stated: [42] . . . 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. (emphasis added) 1. Philipiah was an appeal from a decision of the Medical Tribunal. The Court of Appeal sets out the relevant background at pars [33] to [35] as follows: [33] The Doctor accepted before the Tribunal that the Agreed Conditions should be imposed on his registration. Further, the Commission and the Tribunal appear to have accepted that there was no fault on the part of the Doctor so far as his incapacity was concerned. Those considerations may be relevant to the exercise of the discretion whether to make an order as to the costs of the proceedings in the Tribunal. However, that was not the reason advanced by the Tribunal. [34] As indicated above, the proceedings involved two complaints against the Doctor. The Tribunal considered whether, when there was both professional misconduct and evidence of an impairment, deregistration was the appropriate order. The Tribunal held that a finding of professional misconduct is not necessarily incompatible with a concurrent finding of impairment, where both are made. It found that no question of wilfulness of conduct was raised by the definitions of either category of misconduct and that there was no inconsistency in that approach. [35] The Tribunal accepted that "it is usual for costs to follow the cause" but determined that, "given the circumstances recited above", there should be no order as to costs. The Tribunal then referred specifically to the fact that the Doctor was only just beginning to get his life in order, had limited means and a wife and children to support, and had no insurance cover in New South Wales. . . . 1. In Philipiah the Court of Appeal considered that the Tribunal's discretion had miscarried, and set aside the direction that there should be no order as to costs should be set aside. Instead, the Court ordered the health practitioner to pay Commission's costs. 2. We find Philipiah to be of direct relevance. Like Dr Philipiah, the respondent did not make any admission about his conduct. As we noted at [12] of the primary decision, in a letter to the Tribunal dated Commission dated 1 June 2018, the respondent's solicitors indicated that the respondent did not admit the complaints against him. 3. Accordingly, as: * the applicant was entirely successful; * the respondent did not admit the conduct complained of; * there was no disentitling conduct of the applicant (nor was any claimed), the respondent should bear the Commission's costs, not by way of penalty, but to compensate the Commission for its costs that it incurred in prosecuting the proceedings in the public interest: Philipiah at [45]. 1. In summary, the principles relevant to the award of costs are explained by Meagher JA in Health Care Complaints Commission v Do [2014] NSWCA 307. At [51] his Honour with apparent approval said: In Health Care Complaints Commission v Philipiah [2013] NSWCA 342 the Court accepted that "[a]s a general rule, costs of proceedings before the Tribunal should follow the event": at [42]. Noting that the mere impecuniosity of the losing party was not a justifiable reason for departing from that "rule", the Court also accepted "that there are factors that might militate against the recovery by the Commission of all of its costs in particular proceedings" including the possibility that the Commission was only partly successful, referring to Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48]- [52]. . . . 1. We reject the respondent's submission about "the threshold difficulty", namely that that there is presently no evidence upon which the Tribunal can proceed to determine the amount of costs, if any, to be paid. Clause cl 13 of Sch 5D provides: (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. The respondent relies on Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [47]. There Basten JA stated: The provision has been set out in full because, lest there be any ambiguity in sub-cl (1), it is apparent from the remaining provisions that the Tribunal is to determine the amount of such costs, as well as the persons by whom and to whom the amount is to be paid. Neither party addressed the quantum of costs in submissions or evidence before this Court. Nor would it necessarily be appropriate for this Court to make such an assessment itself. If this Court is to exercise a power under the National Law, the relevant provision is in virtually identical terms to cl 13, except that the final words in subcl (1) read "to another person as decided by the Tribunal": Sch 5D, cl 13. There does not appear to have been a change in meaning. 1. However, the respondent's submission is misconceived. That is because, as Lucire itself makes clear, the Court was considering an earlier version of cl 13(1). That is set out in par [46] as follows: (1) The Tribunal may order the complainant, if any, the registered medical practitioner concerned, or any other person entitled to appear ... at any inquiry or appeal before the Tribunal to pay such costs to such person as the Tribunal may determine. 1. In the circumstances, this particular submission of the respondent is dismissed. 2. Finally, we also reject the submission that no costs should be awarded because a hearing was not necessary and it was the Commission which elected to proceed with a hearing. We do not accept that submission. The Tribunal held a hearing in the ordinary course. The Commission brought three complaints of unsatisfactory professional conduct and one complaint of professional misconduct against the respondent. As we noted at par [ 8] of the primary decision: The Commission's evidence is extensive, consisting of four volumes of over 1,500 pages of materials. The evidence included the complaint of Patient A to the Commission dated 29 October 2015, and its various attachments; various emails between Patient A and the respondent; various text messages between Patient A and the respondent; a CD-ROM containing video clips of the respondent's involvement in Patient A's documentary; correspondence between the respondent and the Commission of Psychology Board of NSW; the respondent's clinical notes for Patient A; the reasons for decision of the Psychology Council dated 27 April 2017 including the transcript of proceedings and related submissions; and the expert report of Dr Timothy Keogh dated 20 February 2017 and related materials. 1. The evidence before us included literally: * over 1,200 of pages of emails; * the text of 813 "WhatsApp" text conversations; and * 360 pages of text messages, between the respondent and Patient A during Patient A's treatment period of March 2011 to August 2014: see par [12] of the primary decision. 1. We consider it to be entirely appropriate that the Tribunal have the assistance of the Commission and its legal representatives at a hearing to understand the evidence before it. Orders 1. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) a hearing is dispensed with. 2. The respondent to pay the applicant's costs, as agreed and failing agreement as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). ********** 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 September 2018