Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Achurch (No 3) [2019] NSWCATOD 138 Hearing dates: On the papers Date of orders: 05 September 2019 Decision date: 05 September 2019 Jurisdiction: Occupational Division Before: Dr J Lucy, Senior Member L Schalk, Senior Member G Tolhurst, Senior Member G Alder, General Member Decision: 1. The Tribunal dispenses with a hearing on the issue of costs. 2. The respondent is to pay the 50% of the applicant's costs as agreed or as assessed. Catchwords: COSTS – Principle that costs follow the event – Whether the applicant's making of a complaint in respect of which it did not seek protective orders was disentitling conduct for the purposes of a costs order Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: Health Care Complaints Commission v Achurch [2019] NSWCATOD 20 Health Care Complaints Commission v Achurch (No 2) [2019] NSWCATOD 112 Health Care Complaints Commission v Elliott [2018] NSWCATOD 47 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Oshlack v Richmond River Council (1998) 193 CLR 72 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Simone Achurch (Respondent) Representation: Counsel: P Aitken (Applicant) Solicitors: Health Care Complaints Commission Legal Officer (Applicant) Respondent self-represented File Number(s): 2018/0044352 REASONS FOR DECISION 1. The applicant ("the Commission") applied for 80% of its costs in proceedings for protective orders against a person who had been registered as a nurse. 2. The Commission established three of its four complaints against the nurse. It ultimately did not pursue any orders in relation to one of the complaints which was found to be proven. 3. The main question we had to decide was whether the making of a complaint, without seeking any orders in relation to the complaint, was disentitling conduct for costs purposes. We have found that it was. 4. Accordingly, we have ordered the nurse to pay 50% of the Commission's costs, being the costs of the two complaints which were successful and which resulted in protective orders being made against the nurse. Background 1. Ms Achurch was convicted of two offences of drug supply in 2016, whilst registered as a nurse. She did not disclose the charges against her and the criminal findings to the Australian Health Practitioner Regulation Agency ("AHPRA") and made false statements about her criminal history in her registration renewal applications. 2. The Commission sought orders against Ms Achurch in the Tribunal under Subdivision 6 of Division 3 of Part 8 of the Health Practitioner Regulation National Law (NSW) ("National Law"). 3. The Tribunal determined this matter in two stages. 4. In the first stage, we determined liability. We found that Ms Achurch had been convicted of offences in the State of New South Wales and that she was guilty of unsatisfactory professional conduct. We found that three of the four complaints made by the Commission were established: Health Care Complaints Commission v Achurch [2019] NSWCATOD 20. 5. In the second stage, we made protective orders. We decided pursuant to s 149C(4)(a) of the National Law that, if Ms Achurch were still registered, we would have cancelled her registration. We further decided, pursuant to s 149C(4)(b) of the National Law, that Ms Achurch was disqualified from being registered as a nurse for a period of two years: Health Care Complaints Commission v Achurch (No 2) [2019] NSWCATOD 112. 6. We expressed a preliminary view as to the appropriate costs orders in our second decision, but invited further submissions. As the Tribunal upheld three of the four complaints made by the applicant ("the Commission"), and as the Commission did not ultimately seek any orders in respect of one of the three complaints which was proven, we expressed the preliminary view that the Commission was entitled to half its costs. We stated (Health Care Complaints Commission v Achurch (No 2) [2019] NSWCATOD 112 at [59]): We propose to order that Ms Achurch pay 50% of the Commission's costs, on the basis that it succeeded on two complaints in relation to which it sought orders, was unsuccessful on another and made a complaint in relation to which it did not seek orders. However, given that the Commission has not had an opportunity to respond to our proposed basis from departing from the usual order as to costs, we will invite the Commission to make submissions about it. If it chooses to make submissions, Ms Achurch will be given an opportunity to respond. 1. Following that decision, the Commission made submissions in which it sought 80% of its costs. We ordered Ms Achurch to make any submissions on which she wanted to rely within 42 days of our decision, but she did not file any submissions in response to the Commission's submissions. Decision on the papers 1. Under s 50(2) of the Civil and Administrative Tribunal Act 2013 ("NCAT Act"), the Tribunal may make an order dispensing with a hearing if 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. 2. The Commission has provided written submissions in relation to costs. Ms Achurch made oral submissions as to costs at the substantive hearing and told the Tribunal that she would leave the question of costs up to it. She did not make any further submissions on costs, despite being given an opportunity to do so. 3. The parties were invited to make submissions as to whether the costs issue should be determined on the papers. The Commission submitted that the issue of costs could adequately be determined in the absence of the parties. It also submitted that the issue of costs should be determined on the papers so as to reduce the total of the professional costs in this matter. Ms Achurch did not make any submissions on this topic. 4. The guiding principle for the NCAT Act is to facilitate the just, quick and cheap resolution of the real issues in the proceedings (NCAT Act, s 36(1)). 5. The Tribunal has already held a hearing and determined the substantive issues in the proceedings. We do not consider that it would facilitate the just, quick and cheap resolution of the real issues in the proceedings to hold another hearing to determine costs. 6. We are satisfied that the issues for determination can be adequately determined in the absence of the parties by considering their written submissions, material already lodged with the Tribunal and the oral submissions made at the hearing (which addressed costs, even though they did not deal with the specific issues later raised by the Tribunal). 7. Accordingly, we have decided to dispense with a hearing on the issue of costs. Costs 1. The Tribunal's power to award costs in these proceedings is contained in clause 13(1) of Schedule 5D to the National Law. 2. Ordinarily costs should follow the event unless there are reasons to conclude otherwise: Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [85]; Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]. Submissions about complaint in relation to which no orders were sought 1. The Commission's costs submissions focused on the reasons why it is entitled to costs in respect of Complaint 3, in relation to which the Commission ultimately did not seek any orders. 2. Complaint 3, which was found proven, was that Ms Achurch is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law in that she engaged in other improper or unethical conduct relating to the practice or purported practice of nursing. The particulars of Complaint Three are that Ms Achurch made false and misleading statements on her renewal applications in 2014 and 2015 by falsely answering "no" to questions concerning changes in her criminal history, and the existence of any undisclosed criminal history. 3. Mr Aitken submitted, for the Commission (at the hearing held for the purpose of determining protective orders), that because Ms Achurch was unregistered, it would be impractical and inappropriate to place conditions on a registration which was not in existence and which might not be again until a re-registration application (if any) was successful. He also said that a reprimand could not be imposed whilst Ms Achurch was not registered, having regard to s 149A of the National Law. 4. Mr Aitken submitted, however, that it was not inappropriate for the Commission to include and to proceed on particulars of a complaint in respect of conduct for which protective orders could not practically be made, in a context where other complaints could be the subject of protective orders. Rather, the contextual improper and unethical conduct was important and relevant for two reasons. The first of these was that Ms Achurch's failure to appreciate the seriousness of this conduct in the course of the hearing supported the conclusion that she was unfit to practise nursing. The second was that the Tribunal's decision on protective orders has implications for any subsequent application for re-registration. The fact that Ms Achurch had engaged in unethical and improper conduct in relation to previous registration renewals is an important consideration for a fresh Tribunal in any re-registration application made by Ms Achurch. Consideration of costs in relation to Complaint 3 1. Ms Achurch's registration as a nurse lapsed on 30 June 2017, when she did not renew it. 2. On 9 February 2018, the Commission commenced proceedings in the Tribunal. 3. The Commission has various courses of action open to it in respect of a complaint made to it about a registered health practitioner (National Law, s 145C(1)). Ms Achurch was not a "registered health practitioner" (see National Law, s 5) at the time the complaint was made. However, provision is made in the National Law for proceedings against persons who were formerly registered health practitioners. 4. Proceedings may be taken in relation to a person's behaviour while registered as if the person were still registered (National Law, s 139G(2)). For these purposes, Part 8 of the National Law (with the exception of Division 2) applies, with any necessary changes, to the person as if a reference to a registered health practitioner included that person. 5. The Commission is under a duty to refer a complaint to the Tribunal if it forms the opinion that it may, if substantiated, provide grounds for the suspension or cancellation of a registered health practitioner's registration (National Law, s 145D(1)). Complaint 3 was not in this category. 6. The Commission may decide not to refer a complaint if the registered health practitioner concerned has ceased to be registered (National Law, s 145I). 7. The Tribunal's powers, once a complaint has been referred, are set out in Subdivision 6 of Division 3 of Part 8 of the National Law. The Tribunal is empowered to exercise any power conferred on it by Subdivision 6, if it finds the subject-matter of a complaint against the practitioner to have been proved or the practitioner admits to it in writing (National Law, s 149). There is nothing in Subdivision 6 to suggest that the Tribunal is to determine complaints other than for the purpose of making protective orders. There is no power, for example, to make a declaration that a complaint against a practitioner has been proved. Rather, a finding (or an admission) is a precondition to the making of an order. 8. The Commission could have sought orders under s 149A(3) against Ms Achurch in relation to Complaint 3. That provision allows for orders such as an order that a practitioner complete an educational course or undergo psychiatric counselling, or an order imposing conditions on a practitioner's registration, to take effect if the person becomes re-registered. Section 149A(3) provides: (3) If the health practitioner is no longer registered, an order or direction may still be given under this section but has effect only— (a) to prevent the practitioner being registered unless the order is complied with; or (b) to require the conditions concerned to be imposed when the practitioner is registered. 1. The Commission chose not to do so. 2. In these circumstances, the Commission was, in effect, seeking an advisory opinion as to whether Complaint 3 was established. It is not the Tribunal's function to provide advisory opinions. 3. We accept that "the contextual improper and unethical conduct" (as Mr Aitken described it), which formed the basis of Complaint 3, had some relevance to the question whether Ms Achurch was fit to practise nursing, for the purposes of s 149C(1)(c) of the National Law. However, this does not mean that it was a proper exercise of the Commission's referral powers to make a complaint about the conduct but not to seek any orders in relation to it. Whilst we do not need to decide this, it may have been possible for the Commission to lead evidence about this conduct without making a complaint about it. We note that Complaint 2 made a complaint concerning a different aspect of the same conduct. In any event, this is not determinative of the question of whether the Commission may properly refer a complaint to the Tribunal without seeking orders in relation to it. 4. The second matter on which the Commission relies is that the Tribunal's decision on protective orders has implications for any subsequent application for re-registration. The Tribunal accepts that this is so. However, whilst the Tribunal has, in a broad sense, made "findings" about Complaint 3, it has not made any orders in relation to this complaint. The lack of any power in the Tribunal to make findings about the subject-matter of a complaint being proved, in the absence of making protective orders, means that any such "finding" lacks statutory force. 5. The Commission also submits that the Tribunal's powers to make protective orders in Subdivision 6 are discretionary, meaning that it is possible for a complaint to be successfully established but no protective order to be made, in the exercise of the Tribunal's discretion. Whilst this is so, that does not mean that it is a proper exercise of the Commission's powers to refer a complaint to the Tribunal where it does not seek orders in relation to the complaint. 6. For these reasons, we are not persuaded that it was appropriate for the Commission to refer Complaint 3 to the Tribunal, in circumstances where it was not seeking any orders in relation to Complaint 3. 7. The pursuit of Complaint 3, in circumstances where no orders were sought in relation to it, was, in our view, "disentitling conduct" on the Commission's part: see Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [45]; Oshlack v Richmond River Council (1998) 193 CLR 72 at [40]. The underlying principle in relation to costs is that of justice and fairness: Health Care Complaints Commission v Elliott [2018] NSWCATOD 47 at [79]. It would not be fair for the Commission to recover its costs of pursuing a complaint in relation to which it did not ask the Tribunal to exercise any powers. 8. We have therefore decided to order that Ms Achurch pay 50% of the Commission's costs as proposed in our previous decision. This reflects the circumstance that the Commission succeeded on two complaints in relation to which it sought orders, was unsuccessful on another and made a complaint in relation to which it did not seek orders. Orders 1. We make the following orders: 1. The Tribunal dispenses with a hearing on the issue of costs. 2. The respondent is to pay the 50% of the applicant's costs as agreed or as 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: 06 September 2019