Health Care Complaints Commission v CSM (No 2)

1. [1]

   By judgment of 18 June 2018 in Health Care Complaints Commission v CSM [2018] NSWSC 902, I allowed an appeal in part from the decision of the Civil and Administrative Tribunal of New South Wales made on 5 October 2016 regarding a registered nurse (“CSM”).

2. [2]

   The context of the appeal was that CSM had admitted inappropriate sexual conduct with a patient with under his care. He admitted that it was professional misconduct and consented to a package of proposed orders which included cancellation, disqualification and prohibition from practice. The Tribunal hearing the matter however made only one of the agreed proposed orders.

3. [3]

   A significant part of the appeal in terms of the basis for my decision was the failure by the Tribunal to provide procedural fairness to the plaintiff. In short, comments made by the judicial member strongly suggested that the proposed package of agreed orders had been accepted. The Tribunal took no submissions from the plaintiff as to the rationale behind that package of orders and/or the statutory scheme that the plaintiff would have argued underpinned the necessity to make all the orders together as a suite of orders, or at least to argue as to why the making of all orders would be the appropriate protective steps to take in this case.

4. [4]

   Both parties had expressed a preference that I quash the previous decision and substitute my own reasons, however I formed the view that I should not do so and returned the matter to the Tribunal for argument on the question of what protective orders should be made.

5. [5]

   Another aspect of the appeal was an application by the plaintiff to set aside the non-publication order made by the Tribunal. I refused leave to appeal that part of the Tribunal’s decision, because there was no proper basis articulated as to why I should set aside the non-publication order made by the Tribunal and in any event it did not meet the threshold for leave.

6. [6]

   Uniform Civil Procedure Rules 2005 (NSW) r 42.1 contains within it the presumption that costs follow the event, although noting that the presumption can be displaced.

7. [7]

   Section 98 of the Civil Procedure Act 2005 (NSW) relevantly provides as follows:

8. [8]

   The plaintiff had success in its appeal, in particular on the procedural fairness ground, one which I observe could have been conceded by the defendant if he chose to do so which would have likely saved a full hearing on the merits of the appeal and the matter could simply have been returned to the Tribunal to address this aspect of their determination.

9. [9]

   Whilst I did not accept the plaintiff’s argument that the whole of the identified suite of orders was required to be made as a matter of law, I accepted that procedural fairness had not been given in respect of the plaintiff’s right to make submissions on that very issue.

10. [10]

    Whilst the plaintiff did not succeed on the argument for leave to appeal the non-publication order, this was a small part of the argument which took little time.

11. [11]

    My preliminary view indicated was that each party should pay its own costs. The plaintiff submitted that an order that each party pay its own costs of the appeal would be appropriate.

12. [12]

    The defendant argued in his written submissions that he had an entitlement to costs associated with the plaintiff’s “abandonment” of grounds 2(a)-(d) that had appeared in the initiating summons filed. The defendant argued the basis for this is r 42.6 which provides as follows:

13. [13]

    The defendant submitted that in respect of the other costs, he should recover 65% of his costs of the appeal on the basis that the plaintiff “did not obtain any of the procedural or substantive prayers for relief sought in its Further Amended Summons”.

14. [14]

    The defendant argued that pursuant to r 42.1, the “event” was in effect a loss to the plaintiff on both issues raised.

15. [15]

    The defendant also argued that whilst the plaintiff succeeded in its procedural fairness argument, it did not seek, even in the alternative, the remitter of the proceedings to NCAT and expressly submitted against that course as did the defendant, so that ought not be considered to be “success”.

Conclusion

1. [16]

   The defendant always had open to him to concede that procedural fairness had not been afforded by the Tribunal in the way it conducted its hearing. Persuasion by the plaintiff as to its suite of orders or full package of protective orders argument was only part of the appeal.

2. [17]

   Significantly, the plaintiff had not been afforded procedural fairness at the first hearing. The fact that I took the view that the issue as to what protective orders should be imposed was one that ought to be determined by the specialist Tribunal, was a situation that could had been reached by the concession on the part of the defendant that procedural fairness had not been afforded.

3. [18]

   The defendant had some success in contesting the challenge to the non-publication order and accordingly should have some reflection of that success in the costs orders I make.

4. [19]

   Orders reflecting the respective partial successes of the plaintiff and the defendant introduce an unnecessary level of complexity and in my view have the effect of cancelling each other out. For example, if I ordered that the defendant receives 25% of his costs of the hearing based on the success on the non-publication order and something reflecting the costs of and occasioned by the late amendment to the summons, this may well be cancelled out by a corresponding order that the defendant pay 75% of the plaintiff’s costs of the proceedings, because he failed in his opposition to the procedural fairness argument.

5. [20]

   In all the circumstances, I am of the view that each party should pay its or his own costs of the appeal.