Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Ahmad v Health Care Complaints Commission (No 2) [2019] NSWCATOD 87 Hearing dates: On the papers Date of orders: 11 June 2019 Decision date: 11 June 2019 Jurisdiction: Occupational Division Before: A Britton, Principal Member R Samimi, Senior Member J Zwart, Senior Member B Seth, General Member Decision: Mr Ahmad must pay the costs of the Health Care Complaints Commission and failing agreement as assessed under the provisions of the Legal Profession Uniform Law Application Act 2014 (NSW). Catchwords: COSTS – whether a party's financial circumstances is relevant to the exercise of the power to make a cost order under cl 13, sch 5D to the Health Practitioner Regulation National Law (NSW). Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: Ahmad v Health Care Complaints Commission [2019] NSWCATOD 35 Arian v Nguyen [2001] NSWCA 5 Health Care Complaints Commission v Ahmad [2015] NSWCATOD 103 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 NSW v Stanley [2007] NSWCA 330 Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111 Category: Costs Parties: Tareq Ahmad (Applicant) Health Care Complaints Commission (Respondent) Representation: Meriden Lawyers (Applicant) E Raper (Respondent) Solicitors: Meriden Lawyers (Applicant) Health Care Complaints Commission solicitors (Respondent) File Number(s): 17/307183 REASONS FOR DECISION 1. In a decision handed down in February 2019, we dismissed the application made by Mr Tareq Ahmad to be reinstated as a pharmacist: Ahmad v Health Care Complaints Commission [2019] NSWCATOD 35. These reasons address the subsequent application for costs made by the Health Care Complaints Commission (the Commission). That application is opposed by Mr Ahmad. 2. For the reasons that follow, we decided to order Mr Ahmad to pay the Commission's costs. Method of determining the costs application 1. In a decision handed down in February 2019, dismissing Mr Ahmad's application to be reinstated as a pharmacist, we invited the parties if they were unable to reach agreement about the Commission's foreshadowed application for costs, to provide written submissions: Ahmad v Health Care Complaints Commission. In addition, we invited the parties to comment on the appropriateness of that application being determined without an oral hearing. 2. The Commission consented to its application for costs being determined without an oral hearing. In written submissions filed on 28 May 2019, Mr Ahmad did not comment on that issue. Those submissions were filed out of time without explanation. Nonetheless, we decided to take them into account in determining the Commission's costs application. 3. The Civil and Administrative Tribunal Act 2013 (NSW) directs the Tribunal to conduct a hearing for proceedings, except in certain circumstances which include where the Tribunal makes an order dispensing with a hearing: s 50(1). The Tribunal is not permitted to make an order dispensing with a hearing unless it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with, or provided to, the Tribunal: s 50(2). 4. The submissions made by Mr Ahmad did not respond to the Commission's primary contention, namely that Mr Ahmad's financial position was not a "justifiable reason" to depart from the "general rule" that the successful party is entitled to costs. Nonetheless, we were satisfied that the costs application could be adequately determined without an oral hearing on the basis of the submissions and material provided by the parties. In reaching that conclusion, we considered particularly relevant the narrow range of issues that fall to be determined by the Commission's costs application. . 5. In exercising the discretion to dispense with an oral hearing, we took into account the obligation imposed by s 36(1) of the Civil and Administrative Tribunal Act, which requires the Tribunal to seek to give effect to the guiding principle of that Act: the facilitation of the just, quick and cheap resolution of the real issues in the proceedings. We concluded that if a hearing was conducted it would likely not only delay the finalisation of the application but add to the costs incurred by the parties. Should the discretion to order Mr Ahmad to pay the costs of the Commission be exercised? 1. Mr Ahmad opposes the application for costs. He asserts that he does not have the capacity to pay the Commission's costs, which he claims to be in the sum of $32,000. He states that he has only recently paid the Commission's costs of the original NCAT proceedings, in which the Tribunal cancelled his registration. He asserts that the costs sought by the Commission in the review proceedings are unreasonable and points out that the hearing ran for a single day. 2. Mr Ahmad claims that he is struggling to pay bills and support his family and will probably have to sell his house if he is required to pay the Commission's costs. He claims that he has already spent a considerable sum engaging lawyers to represent him in the review proceedings. He states that he did everything in his power to persuade the Tribunal to reinstate his registration and that it is "totally unfair" that the Commission now asks him to pay its costs. He contends that the amount of costs sought by the Commission is excessive and that the Commission has demonstrated "no mercy". 3. In exercising the power to award costs conferred by cl 13, sch 5D to the Health Practitioner Regulation National Law (NSW), the general "rule" is that costs follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 (Philipiah) at [42]; Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [85] and Health Care Complaints Commission v Do [2014] NSWCA 307 at [51]. The presumption that the successful party is entitled to receive their costs will generally only be displaced where there has been some "disentitling conduct" by the successful party: Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [40]; Arian v Nguyen [2001] NSWCA 5 at [36]. It is for the losing party to establish a basis for any departure from the 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]. Mere impecuniosity of the losing party is not a justifiable reason for departing from the presumption that the successful party is entitled to receive their costs: Philipiah at [42]. 4. While aggrieved by the Commission's demand for costs, Mr Ahamd does not suggest that the Commission engaged in any form of disentitling conduct, 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]). 5. Mr Ahmad was confident that his application for reinstatement would be successful. Understandably he is disappointed with the outcome. He now faces the prospect of being required to pay not only his own but the Commission's costs. We accept that he will struggle to pay these costs. While we have considerable sympathy for his position, the authorities have consistently stated that the fact that the party ordered to pay the costs of another party will suffer hardship as a result of that order, is not an appropriate basis to exercise the discretion to make an order for costs under cl 13, sch 5D to the Health Practitioner Regulation National Law: Philipiah at [44]. 6. Where, as in this case it is asserted that the quantum of costs sought by the party seeking an order for costs is excessive, it is open to the party making that assertion to request that the Tribunal exercise its power to fix the amount of costs. Mr Ahmad has neither submitted that this power be exercised nor proposed any basis to fix the costs sought by the Commission. If, as Mr Ahmad contends the costs sought by the Commission are unreasonable it is open to him to have the costs assessed. 7. We order Mr Ahmad to pay the Commission's costs as agreed or assessed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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 Amendments 11 June 2019 - typo - date of orders amended 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: 11 June 2019