Quach v Horvarth

The plaintiff in these proceedings filed an amended summons on 27 May 2021 seeking an order that the Court set aside a decision of the defendant to order an inquiry pursuant to the Medical Practice Act 1992 (NSW). On 1 November 2021, those proceedings were dismissed by Harrison AsJ. [1]

In those proceedings, the Medical Council of New South Wales (to whom I shall refer as "the Council") had filed a notice of motion on 9 June 2001 (the Council’s motion) seeking to set aside a subpoena which had been served on it by the plaintiff seeking production of a number of documents. For reasons which are unclear, the determination of Harrison AsJ did not specifically address the issues stemming from that subpoena, or make any specific order in respect of the Counsel’s motion.

The plaintiff then sought to bring an appeal against the decision of Harrison AsJ. That application was determined by Campbell J on 14 March 2022 when his Honour made the following orders: [2]

It will be noted that order [4] of his Honour's orders required the plaintiff to pay the costs of the Council’s motion. The motions which were deemed dismissed by virtue of order 6 made by Campbell J were in fact set out at paragraph [12] of his Honour's reasons.

The plaintiff then sought to file a notice of appeal against Campbell J's orders. That notice of appeal was dismissed by Basten JA. [3]

Against that background, there are now two applications before the Court.

The first is an application by the defendant by way of a notice of motion of 28 March 2022, seeking an order pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW) that the plaintiff pay the defendant's costs of the proceedings as a gross sum in an amount of $10,414.09, or such other sum as the Court thinks fit. That notice of motion was supported by an affidavit of Nicholas Scott Regener, solicitor, of 28 March 2022.

The second is an application by the Council brought by way of a notice of motion filed on 29 March 2022, seeking the following orders:

That notice of motion is supported by affidavits of Bahar Turkmener of 28 March 2022, and Bridget Andersons of 12 April 2022.

It should be noted that in the course of the hearing I sought clarification of the order sought in paragraph 3 of the notice of motion. Counsel explained that what was sought in paragraph 3 was a separate costs order (expressed on the usual basis) in respect of such motion. Having sought instructions, counsel informed me that if I was minded to make the order sought in paragraph 4 of the motion, the Council sought a gross sum costs order in an amount of $14,020.80, which would alleviate the need to make the separate order sought in paragraph 3.

The plaintiff objected to the affidavits which were read in support of the respective motions. The primary objection raised by the plaintiff was that there were no "receipts" annexed to any of them. That is a factor which may go to the weight of the evidence, but in my view is not a factor which goes in any way to its admissibility. I therefore proceed on the basis that all three affidavits were read.

Counsel for both the defendant and the Council provided written submissions to the Court in advance of the hearing setting out their respective positions. Those submissions cited various authorities which govern the Court's discretion under the Civil Procedure Act 1995 (NSW) to make an order for costs in a gross sum. The essence of the position of both the defendant and the Council was that in view of the history of this litigation, the most effective way in which to address the question of costs was to make orders in the terms which had been sought.

The plaintiff also provided written submissions in opposition to the orders sought, which were supplemented by oral submissions before the Court today. The transcript will reflect that in the course of those oral submissions, the plaintiff put to the Court on a number of occasions that there had been "an absence of jurisdictional facts" which was said to tend against making the orders sought. In that respect, the plaintiff relied on a number of authorities, including Gedeon v Commissioner of the NSW Crime Commission. [4] The plaintiff also made reference to having been "bullied" into doing certain things, and asserted that there were a number of factual errors in the defendant's submissions. He also sought, on numerous occasions, to challenge aspects of the decisions of Harrison AsJ and Campbell J to which I have referred. He also relied on s 34B(4)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) and submitted that the effect of that section was to stay any orders made by Harrison AsJ and Campbell J. He also submitted that the Council had "no jurisdiction" over the documents which were the subject of the Council’s subpoena. It will be evident that those submissions seek to challenge, in varying respects, the determinations of Harrison AsJ and Campbell J respectively.

The principles governing a gross sum costs order include the following:

The judgment of Basten JA dismissing the plaintiff’s notice of appeal sets out the history of this litigation. To say that such a history is long and involved would be an understatement. On the basis of the affidavit evidence, and applying the principles to which I have referred, the orders which have been sought in each case are entirely appropriate. I am fortified in that view by the approach taken by the plaintiff before the Court today in which, in the course of his submissions, he repeatedly sought to challenge aspects of the decisions of Harrison AsJ and Campbell J. If such an approach were replicated in a formal costs assessment, it can be reasonably anticipated that such assessment would be both protracted and expensive. That, in my view, is a matter which weighs particularly heavily in favour of the gross sum orders which have been sought. In reaching that conclusion, I am of the view that the sums are reasonable in each case, having regard to the matters in [15](b) above.

The additional orders sought by the Council pursuant to r 36.16 and r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW) are also appropriate. The order sought pursuant to r 36.16(3A) is intended to make it clear that the Council's costs of the proceedings should include the costs of the Council’s motion. The order sought pursuant to r 36.17 simply corrects what is essentially a typographical error in Campbell J’s judgment.

Accordingly, for those reasons I make the following orders.