Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Mahony v Dental Council of NSW (No 2) [2019] NSWCATOD 133 Hearing dates: On the papers Date of orders: 28 August 2019 Decision date: 28 August 2019 Jurisdiction: Occupational Division Before: A Britton, Principal Member Decision: Dr Mahony must pay the costs of the Dental Council of NSW, as agreed or assessed. Catchwords: COSTS - principles applying to the exercise of the discretion to award costs under Health Practitioner Regulation National Law (NSW) - exercise of the discretion not limited to disentitling conduct by successful party - appropriateness of exercise of the power to fix costs payable under a costs order - whether power to award costs under Health Practitioner Regulation National Law (NSW) can be exercised where the proceedings dismissed for want of jurisdiction Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: Arian v Nguyen [2001] NSWCA 5 NSW v Stanley [2007] NSWCA 330 Commonwealth v Gretton [2008] NSWCA 117 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [40] Qasim v Health Care Complaints Commission [2015] NSWCA 282 Health Care Complaints Commission v Do [2014] NSWCA 307 Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229 Category: Costs Parties: Derek Mahony (Appellant) Dental Council of NSW (Respondent) Representation: Counsel: D McDonald-Norman (Appellant) Z Heger (Respondent) Solicitors: Sparke Helmore Lawyers (Appellant) Crown Solicitor (Respondent) File Number(s): 2018/00129081 REASONS FOR DECISION 1. In a decision made on 28 August 2018, I concluded that NCAT did not have jurisdiction to entertain an appeal brought by Dr Derek Mahony against a recommendation made by an "Assessment Committee" under s 147D(1)(a) of the Health Practitioner Regulation National Law (NSW) ("the National Law"), that a complaint about Dr Mahony be dealt with by way of inquiry at a meeting of the Dental Council of NSW ("the Council"): Mahony v Dental Council of NSW [2018] NSWCATOD 146. Dr Mahony unsuccessfully challenged that decision in the Supreme Court and was ordered to pay the Council's costs of that appeal: Dr Derek Mahony v Dental Council of New South Wales [2019] NSWSC 276. 2. The Council applies for its costs of the original NCAT proceedings. Dr Mahony opposes that application and submits that each party should bear their own costs. For the reasons that follow I have decided to order Dr Mahony to pay the Council's costs. Determination of the costs application 1. In orders made on 26 April 2019, I invited the parties to make written submissions about the Council's application for costs and to comment on whether that application could be determined without a hearing, as permitted by s 50(3) of the Civil and Administrative Tribunal Act 2013 (NSW) ("the NCAT Act"). Each party provided written submissions and consented to the costs application being determined without a hearing. After considering those submissions, I concluded that the costs application could be adequately determined "on the papers" and exercised the discretion to dispense with the requirement to hold a hearing: s 50 of the NCAT Act. The statutory framework and principles governing the exercise of the discretion to award costs 1. Clause 13 of Schedule 5D to the National Law provides: 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. ... (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. In exercising the discretion to award costs the general "rule" is that costs follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 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: NSW v Stanley [2007] NSWCA 330 at [24]. 2. The underlying principles in relation to costs are justice and fairness. A court or tribunal will make an assessment of, and take into account, each party's responsibility for the costs incurred. In Commonwealth v Gretton [2008] NSWCA 117, Hodgson JA said at [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. Submissions on costs 1. The Council contends that there is no basis to depart from the ordinary rule established by cl 13. The Council contends that Dr Mahony has failed to demonstrate why a departure from that rule is warranted in circumstances where his appeal brought against the recommendation made by an Assessment Committee was dismissed for want of jurisdiction. 2. The Council submits that relevant to the determination of its costs application is Dr Mahony's decision to press on with the appeal, despite being provided with the Council's detailed submissions outlining the jurisdictional problems and being forewarned of the Council's intention to make a costs application. 3. While accepting that the ordinary position under cl 13 is that costs should follow the event, Dr Mahony contends that here there are special circumstances which warrant a departure from that position in this case. First, he asserts that the genesis of the controversy between the parties about whether an appeal was available from the recommendation made by the Assessment Committee, arose because of problems with the drafting of s 158 and s 158A of the National Law, which the Tribunal described at [49] of its reasons as "ambiguous for a number of reasons". In a considered decision, the Tribunal decided that because of those ambiguities, it was necessary to turn to legislative context in order to determine whether an appeal was available from the recommendation made by the Assessment Committee. 4. Second, he points out that the Tribunal accepted that there was contextual support for the argument he advanced that an appeal was available under s 158 of the National Law in relation to "findings" made by an Assessment Committee, although the Tribunal found there was also contextual support for the Council's argument to the contrary: at [49]. 5. Third, Dr Mahony points out that although the Tribunal (and the Supreme Court) concluded that the Assessment Committee lacked power to make findings, nonetheless the Assessment Committee purported to do so in its report. Dr Mahony contends that his unsuccessful challenge to the recommendation made by the Committee was prompted and strengthened by the way in which the Assessment Committee purported to exercise its powers. 6. Fourth, Dr Mahoney contends that while he was unsuccessful in persuading the Tribunal and the Supreme Court that a right of right of appeal was available from the recommendation made by the Assessment Committee, nonetheless it could not be said that that contention lacked a tenable basis in fact or law. Citing Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229 at [17],[28],[29], Dr Mahony contends that difficulty and ambiguity in legislative interpretation are potentially relevant to the exercise of the discretion to award costs. 7. Finally, Dr Mahoney contends that he did not conduct the appeal before the Tribunal in a way that unnecessarily disadvantaged the Council or unreasonably prolonged the proceedings. In addition, he contends that he did not act unreasonably in rejecting the invitation extended by the Council the day before the hearing to discontinue the appeal. Consideration 1. The genesis of the jurisdictional dispute between the parties is the definition in s 138 of the National Law which states that in Part 8 of the National Law, the term "committee" means a Professional Standards Committee and an Assessment Committee. Dr Mahoney purported to exercise a right of appeal under s 158 and s 158A (which are contained in Part 8), which give a registered health practitioner a right of appeal to NCAT against "a finding of the Committee" (s 158(1)(a)) and "the Committee's decision on the point of law which is the subject of the appeal". I remain of the view that I expressed in the original decision, that it is unfortunate that the National Law does not expressly state that the term "committee" as used in s 158 and s 158A is a reference solely to a Professional Standards Committee and not to an Assessment Committee. 2. Nonetheless, as the Supreme Court and this Tribunal ultimately concluded, when regard is had to statutory context and the scope and subject matter of s 158 and s 158A, it is plain that the right of appeal to NCAT conferred by those provisions lies solely from decisions/findings made by Professional Standards Committees and not Assessment Committees. 3. Disentitling conduct on the part of the successful party is the usual but not only basis for departing from the rule that "costs follow the event": Oshlack v Richmond River Council at [40], [49]. There might be occasions where controversy over a question of statutory construction may warrant the exercise of the discretion to depart from that rule, where, for example, there is conflicting authority on a question of a construction. However, in my view, the fact that the outcome of the proceedings turned on a question of statutory interpretation does not, of itself, provide a sufficient basis to depart from the usual rule. In reaching that conclusion I accept Dr Mahony's assertion that his actions in appealing the recommendation made by the Assessment Committees were not reckless. Nonetheless, his contention about the proper construction of s 158 and s 158A was ultimately rejected by this Tribunal and the Supreme Court and it is reasonable in those circumstances that he compensate the Council for the costs it incurred in defending the appeal. Applicable costs regime 1. In the alternative, Dr Mahony contends that because the Tribunal found that it lacked jurisdiction to determine his appeal, the proceedings were not proceedings brought under the National Law, and thus the power to award costs pursuant to cl 13(1) of Sch 5D to the National Law is not enlivened. It follows, he contends, that the applicable costs provision is s 60 of the Civil and Administrative Tribunal Act, which provides that each party to proceedings will pay their own costs unless the Tribunal is satisfied that "there are special circumstances warranting an award of costs" (emphasis added): s 60(2). He asserts that the Tribunal could not be satisfied that there are special circumstances in this case that warrant a departure from the presumption created by s 60 that each party will bear their own costs. 2. In the Supreme Court appeal, Wilson J at [59] rejected that contention, stating that it would be a "perverse result" to conclude that because the Tribunal lacked jurisdiction to determine the appeal, the power to award costs under the National Law was not enlivened. 3. The issue of the applicable costs provision has been determined by the Supreme Court. The power to award costs with respect to Dr Mahoney's appeal to NCAT is conferred by the National Law, not the Civil and Administrative Tribunal Act. Form of orders 1. The Council seeks an order that failing agreement by the parties on the amount of costs, the Council be given leave to approach the Tribunal to seek an order to fix the costs payable by Dr Mahony. I have decided not to make that order for these reasons. First, in the form proposed, the order would enable the Council to apply to the Tribunal at some indefinite date in the future, to fix the amount of costs. Second, in the circumstances of this case, in my view it would not be an efficient use of the limited resources available to NCAT to fix the costs of proceedings if the parties are unable to reach agreement on the amount of costs. If agreement with Dr Mahony on the amount of costs is not reached, it is open to the Council to refer that issue to a costs assessor. Conclusion 1. Dr Mahony must pay the costs of the Dental Council of NSW, as agreed or assessed. ********** 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: 28 August 2019