Health Care Complaints Commission v Emery (No. 2) [2017] NSWCATOD 23

Health Care Complaints Commission v Emery (No. 2) [2017] NSWCATOD 23

Although the Commission had a proper and arguable basis to bring Complaints One and Two, it failed on those serious complaints and did not substantially succeed overall. The written evidence and hearing time were overwhelmingly concerned with Complaints One and Two, which were the dominant issues in the proceedings, notwithstanding that some cross-examination concerned drug taking, attitude to drugs, impairment and insight. Applying a broad-brush approach, the appropriate costs order was the foreshadowed differential order requiring the respondent to pay 33% of the Commission's costs and the Commission to pay 67% of the respondent's costs.

Jurisdiction
Australia
Judgment Date
16 February 2017
Procedural Posture
Costs Decision in Occupational Division Health Practitioner Disciplinary Proceedings / On the Papers After Principal Decision on Complaints
Outcome
Foreshadowed differential costs order made.
Legal Topics
['occupational Division Costs' 'health Practitioner List' 'differential Costs Order' 'unsatisfactory Professional Conduct' 'professional Misconduct' 'impairment' 'broad Brush Costs Apportionment']
['administrative Law' 'health Practitioner Regulation' 'costs'] ['occupational Division Costs' 'health Practitioner List' 'differential Costs Order' 'unsatisfactory Professional Conduct' 'professional Misconduct' 'impairment' 'broad Brush Costs Apportionment']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Costs Decision in Occupational Division Health Practitioner Disciplinary Proceedings / On the Papers After Principal Decision on Complaints

Legal Issues

  1. 1 ['Whether the Tribunal should make the foreshadowed differential costs order or an equal apportionment of costs.' 'Whether Complaints One and Two were dominant or separable issues for the purpose of costs apportionment.' 'Whether the Commission substantially succeeded in the proceedings despite succeeding on the impairment complaint.']

Ratio Decidendi

Although the Commission had a proper and arguable basis to bring Complaints One and Two, it failed on those serious complaints and did not substantially succeed overall. The written evidence and hearing time were overwhelmingly concerned with Complaints One and Two, which were the dominant issues in the proceedings, notwithstanding that some cross-examination concerned drug taking, attitude to drugs, impairment and insight. Applying a broad-brush approach, the appropriate costs order was the foreshadowed differential order requiring the respondent to pay 33% of the Commission's costs and the Commission to pay 67% of the respondent's costs.

Court Disposition

Foreshadowed differential costs order made.

Orders

  • ["The respondent pay 33% of the Commission's costs of the proceedings." "The Commission pay 67% of the respondent's costs of the proceedings."]