Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Cooke v Medical Council of NSW [2020] NSWCATOD 15 Hearing dates: 9 December 2019 Date of orders: 21 February 2020 Decision date: 21 February 2020 Jurisdiction: Occupational Division Before: Le Poer Trench ADCJ, Principal Member Decision: The application for costs of these proceedings is dismissed. Catchwords: PROFESSIONS AND TRADES – health and professionals – medical practitioners – costs application following an appeal dismissed by consent. Legislation Cited: Health Practitioner Regulation National Law (NSW) No 86a ("the National Law") Cases Cited: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 (Philipiah); Qasim V Health Care Complaints Commission [2015] NSWCA 282 (Qasim); James v Surf Road Nominees Pty. Ltd (No. 2) [2005] NSWCA 296. Minister for Immigration & Ethnic Affairs; Exhibit parte Lai Qin (1997) 186 CLR 622. Texts Cited: None cited Category: Costs Parties: Jason Brenden Cooke (Applicant) Medical Council of NSW (Respondent) Representation: Counsel: I Fraser (Applicant) Solicitors: HWL Ebsworth (Applicant) Medical Council of NSW (Respondent) File Number(s): 2019/00273248 Publication restriction: Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) an order is made prohibiting publication of the name of the patients set out in the schedule to the complaint. REASONS FOR DECISION Backgrond 1. Dr Jason Brenden Cooke (the applicant) seeks an order that the Medical Council of NSW (the respondent) pay his costs of the appeal which was ultimately dismissed, by consent, on 11 November 2019. The applicant filed written submissions on 25 November 2019 and the respondent filed submissions in reply on 9 December 2019. 2. The crux of the applicants' case is that the appeal became unnecessary to pursue as the dispute between the parties had been resolved prior to the date scheduled for the hearing of the appeal and that dispute was resolved in the applicants' favour. The applicant therefore argues that he has been, effectively, wholly successful in the appeal proceeding. 3. The procedural history, as recited in the submissions of the applicant, are not disputed by the respondent except as is stated in paragraphs 15 and 17 of the submission. 4. On 28 November 2018 the respondent received a complaint regarding the applicant. Acting on that complaint the respondent decided to refer the matter to the Health Care Complaints Commission (HCCC) as a complaint and imposed 14 conditions on the applicants' registration pursuant to s. 150(1)(b) of the Health Practitioner Regulation National Law (NSW) No 86a (the National Law). 5. On 11 July 2019 the HCCC notified the applicant it had referred the complaint back to the respondent under s. 39(1)(c) of the Health Care Complaints Act 1993 for consideration of action under the National Law. 6. On 5 August 2019 the respondent determined to take action pursuant to s. 150C of the National Law and reimposed the 14 existing conditions upon the registration of the applicant together with two further conditions (practice conditions 5 and 6). It then referred the applicant to the Impaired Registrants Panel (IRP) pursuant to s. 150F of the National Law. 7. The two further conditions, referred to as "conditions 5 and 6"(hereafter referred to as the "further conditions") prohibited the applicant from possessing or supplying any "drug of addiction" (a Schedule 8 drug) and any Schedule 4 drug "listed in Appendix D to the Poisons and Therapeutic Goods Regulation 2008 (NSW)" and required him to surrender his authority to prescribe such drugs. 8. On 7 August 2019 the applicant sought the respondent reconsider the imposition of the further conditions. That request was answered on 13 August 2019 by the respondent declining the applicants request. 9. On 13 August 2019 the applicant attended the offices of the Pharmaceutical Regulatory Unit (PRU) in compliance with the further conditions. 10. On 2 September 2019 the applicant commenced the Appeal proceedings in the Tribunal and sought a stay of the two further conditions pending the hearing of his appeal. The stay was refused on 13 September 2019. 11. On 11 October 2019 an Impaired Registrant's Panel (IRP) was convened. There is some disagreement between the parties as to what occurred at that hearing. It is not in contest that the outcome was that the IRP determined to impose 14 conditions upon the registration of the applicant and those conditions did not include the "further conditions" above described. The letter from the respondent to the applicant dated 14 October 2019 (attached to the applicants' submissions) states that "as you know Conditions were imposed on your registration with your agreement following your Impaired Registrants Panel Inquiry on 11 October 2019. They are listed in the Attachment to this letter. They came into effect on 12 October 2019." 12. Implicit in the letter from the respondent to the applicant of 14 October 2019 is an unstated intention to no longer press for the inclusion of the "further conditions" in the form specified above or in any other form. The conditions agreed to by the applicant, when he appeared before the IRP, do not include the "further conditions". 13. On 11 November 2019 the applicants' appeal was listed for determination before the Tribunal. Prior to that date the Tribunal was advised that the appeal would be withdrawn. On that day the appeal was dismissed, by consent, and the question of the applicants' costs application was reserved. Each party was directed to provide written submissions on the cost application, which they have done. 14. The respondent in answer to the submission of the applicant attached a copy of a letter it sent to the applicant dated 13 August 2019. Whilst advising the applicant that it would not review the imposition of the "further conditions" it included the following paragraph in the letter: "In any event, as you are aware, Dr Cooke is to have an Impaired Registrants Panel inquiry….it is likely to be in the near future. At the inquiry, Dr Cooke's situation will be comprehensively reviewed. He will have the opportunity to request alteration or removal of the conditions on his registration at that time, if he consents to alternate conditions recommended by the IRP. It is distinctly possible that the additional conditions may only be in effect for a limited time and an appeal would be redundant." 1. It is noted that in the same letter (i.e. 13 August 2019) from the respondent to the applicant, the reason (or one of the reasons) why the respondent had imposed the further conditions is stated. Evidence of the applicants' "serious issues with prescribing" were noted in the s.150 hearing. The letter set out some detail in relation to same as follows: "(a) He prescribed a patient (name omitted) oxycodone 10 times between 2016 and 2018. (b) Four of these scripts were written within one month. (c) he was aware that the patients' opioid use 'was out of hand' yet wrote the scripts anyway. (d) He did not liaise with the patients' GP about his prescribing or check whether she was obtaining prescriptions for Schedule 8 drugs elsewhere. (e) He destroyed Schedule 8 drugs in a manner that did not comply with the Poisons and Therapeutic Goods Regulation 2008. (f) He failed to maintain a drug register." 1. The applicant also relied upon the "more detailed history" set out in paragraphs [19] to [32] of the judgment of 13 September 2019. Without repeating those paragraphs, I here incorporate same into this judgment. 2. The applicant in his submission set out the "Legal and Statutory framework" which he submitted had application in this matter. In particular he referred to Clause 13 of Schedule 5D of the National Law which established the power for the Tribunal to make a costs order. Further he referred the Tribunal to the decisions in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 (Philipiah)at [42] – [45]; Qasim V Health Care Complaints Commission [2015] NSWCA 282 (Qasim); James v Surf Road Nominees Pty. Ltd (No. 2) [2005] NSWCA 296 at [34]. There were other cases cited in support of submission. 3. The applicant submits he has been wholly successful in that the Council did not ultimately require the "further conditions" following the hearing before the IRP. At that hearing the applicant had agreed to accept the conditions required by the IRP which did not include the "further conditions." 4. The applicant said it was necessary to file the appeal because at the time of filing no date for the hearing before the IRP had been fixed. Further the applicant submits it was open to the Council not to impose the further conditions until after the IRP hearing. Had it done so there was no need for the applicant to lodge the appeal. 5. The respondent in its submission agreed that the provisions of the National Law set out by the applicant governs costs in these proceedings. The respondent sought to distinguish the decisions in Philipiah and Qasim on the basis they were both appeals from decisions of the Tribunal whereas the present proceeding is an appeal brought to the Tribunal pursuant to ss. 159 and 159B of the National Law. Further the respondent points out that both the decisions referred to involved cases where one party was successful in the proceeding in which the default position is that costs follow the event. The respondent submits that in the subject case the applicant was not successful in the proceeding in the Tribunal as there was no case to press at the time the Appeal was listed for hearing. By that time the applicant had achieved his aim of having the further conditions removed. The respondent submits the effect of the above circumstance is that "Therefore there was no "event" from which costs might follow." 6. The respondent referred the Tribunal to the decision of the High Court in Re Minister for Immigration & Ethnic Affairs; Exhibit parte Lai Qin (1997) 186 CLR 622. In that matter McHugh J considered an application for costs by Ms Qin, who had commenced proceedings in the High Court after she had been refused a protection visa. Before the proceeding could be determined, the Minister issued the protection visa. Ms Qin did not therefore pursue the proceeding in the High Court. McHugh J stated: "If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings. This approach has been adopted in a large number of cases[7]". 1. The respondent submitted that McHugh J set out the circumstances where there may be departure from the position stated in the above quote from his judgment. 2. The respondent submits that the applicant achieved the result he desired when he was before the IRP not in a proceeding before the Tribunal. It submits therefore that the approach to the applicant's cost application should follow the decision in Lai Qin rather than being a circumstance where the Tribunal would consider "costs follow the event". 3. The respondent submits it has acted reasonably in the matter. It points to the letter written to the applicants' solicitor on 13 August 2019 pointing to an alternate option for the applicant rather than an appeal. 4. The respondent submits that the applicant chose to pursue an appeal and a stay order as he was entitled to do. It was consequently obliged to defend the proceeding as it was entitled to do. The applicant was unsuccessful in the stay application. 5. The respondent submits this is not a case where the defence of the appeal was without merit. It relies upon the finding of Boland AJ in paragraph 54 of her judgement, where, when refusing the stay she said "The strengths and weaknesses of the appeal are finely balanced." 6. In its submission the respondent set out the matters of concern which required the action to be taken by the Council in imposing the "further conditions". Those matters are set out in paragraph 15 of these reasons. The respondent submits that on any view, it could not be suggested that the imposition of the "further conditions" by the council, faced with those allegations, was unreasonable. If the further conditions had been maintained following the IRP hearing then the appeal would have required a testing of those allegations. 7. The respondent does not seek an order for costs against the applicant. This is notwithstanding that the applicant was unsuccessful in his stay application. 8. In the reasons of Boland ADCJ, at paragraph 48 she notes the Council had advised the Tribunal that the matter was scheduled before the IRP on 11 October 2019. As such the applicant could have elected not to proceed with the stay application or seek an expedited hearing until that body had finished hearing his matter and the necessity for the "further conditions". In answer to that suggestion the applicant says he was unaware of a date being fixed for the IRP to consider his case until the hearing of his stay application. Determination 1. I conclude that this is a case which really does fall squarely within the decision of Lai Qin. I do not find, on the evidence before the Tribunal, that either party has acted unreasonably in the circumstances. The respondent through its IRP arm has considered the matter and no doubt had access to evidence and advice which was not available when the respondent imposed the "further conditions". Further the IRP had the advantage of being able to hear from the applicant and/or his legal representative and therefore had the capacity to consider matters which may not have been available to those officers of the respondent who imposed the "further conditions". As the respondent pointed out however, the proceeding before the IRP was not a proceeding in the Tribunal. 2. I conclude therefore that the Tribunal should make no order as to costs, as regrettable as that may be to the applicant. Both parties have clearly incurred legal cost in preparing for the hearing before the Tribunal on 13 September 2019 and thereafter complying with the directions made on that day which required substantial legal work to be undertaken to be ready for the expedited hearing of the applicants' appeal set for 12 November 2019. That work needed to be completed before the hearing by the IRP took place on 11 October 2019. 3. I note that no costs application was made before Boland ADCJ on 13 September 2019 and no point is taken by the respondent that the costs of the stay application should have been the subject of an application to Her Honour. I have understood therefore that the respondent has accepted that the applicant is pursuing all costs incurred in the proceeding filed in the Tribunal including the stay application pursued and determined on 13 September 2019. 4. The order of the Tribunal is as follows: 1. The application for costs of these proceedings is dismissed. ********** 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: 21 February 2020