Health Care Complaints Commission v Wilcox (No 2) [2020] NSWCATOD 51

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Wilcox (No 2) [2020] NSWCATOD 51 Hearing dates: On the papers Date of orders: 06 May 2020 Decision date: 06 May 2020 Jurisdiction: Occupational Division Before: Cole DCJ, Deputy President Decision: 1. The Respondent's application for an award of costs in his favour is refused. Catchwords: PROFESSIONS AND TRADES – health care practitioners - medical practitioners – disciplinary proceedings - costs Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd [1993] FCA 259 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complaints Commission v Wilcox [2020] NSWCATOD 10 Hughes v Western Australian Cricket Association (1986) ATPR 40-748 James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 McFarlane (Supreme Court (NSW), Blanch J, 12 August 1994, unrep) Oshlack v Richmond River Council [1998] HCA 11 R v Manley (2000) 49 NSWLR 203 Category: Procedural and other rulings Parties: Health Care Complaints Commission (Applicant) Dr David Normanton Gutteridge Wilcox (Respondent) Representation: Counsel: S Mayberry (Applicant) M Hutchings (Respondent)

Solicitors: Health Care Complaints Commission (Applicant) Meridian Lawyers (Respondent) File Number(s): 2019/127232 Publication restriction: The publication by any person or entity of the name of the patient set out in the schedule to the complaint, or the spouse of the patient, is prohibited under clause 7 of Schedule 5D of the Health Practitioner Regulation National Law (NSW).

REASONS FOR DECISION 1. The substantive decision in this matter was published on 13 February 2020. 2. The Respondent was found to have behaved in a manner which constituted unsatisfactory professional conduct in making inappropriate personal disclosures to Patient A, in omitting to leave the room, or to offer to leave the room whilst she was disrobing, and in omitting to provide a gown for her use when she was partially disrobed. 3. The proceedings included other allegations against Dr Wilcox which were not proven. The proceedings included a complaint that Dr Wilcox's conduct amounted to professional misconduct, and that allegation was not accepted by the Tribunal. 4. The Respondent now seeks an order that the Health Care Complaints Commission ('the HCCC') pay a portion of his legal costs.

Determination on the papers 1. The Civil and Administrative Tribunal Act 2013 (NSW) provides, in s 50: 50 When hearings are required (1) A hearing is required for proceedings in the Tribunal except— (a) in proceedings for the granting of leave for an external or internal appeal, or (b) in connection with the use of any resolution processes in proceedings, or (c) if the Tribunal makes an order under this section dispensing with a hearing, or (d) in such other circumstances as may be prescribed by the procedural rules. (2) 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. (3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first— (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account. (4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules. (5) This section does not prevent the Tribunal from holding a hearing even if it is not required. 1. The parties were given the opportunity to make submissions about whether the question of costs could be decided on the papers, without a hearing. Neither party opposed that course. 2. I am satisfied that the issues for determination in relation to the Respondent's application for costs can be adequately determined in the absence of the parties by considering the written submissions and other material before the Tribunal.

Power to award costs 1. The Health Practitioner Regulation National Law (NSW) ('the National Law') provides, in clause 13 of Schedule 5D: 13 Tribunal may award costs [NSW] (1) The Tribunal may order the complainant (if any), the registered health practitioner or student concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal. (2) When an order for costs has taken effect, the Tribunal is, on application by the person to whom the costs have been awarded, to issue a certificate setting out the terms of the order and stating that the order has taken effect. (3) The person in whose favour costs are awarded may file the certificate in the District Court, together with an affidavit by the person as to the amount of the costs unpaid, and the Registrar of the District Court must enter judgment for the amount unpaid together with any fees paid for filing the certificate. (3A) The Tribunal may fix the amount of costs itself or order that the amount of costs be assessed by a costs assessor under the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (4) This clause applies instead of section 60 (Costs) of the Civil and Administrative Tribunal Act 2013.

Applicable Principles 1. The general rule in litigation, in a jurisdiction where an order for legal costs may be made, is that the unsuccessful party will be ordered to pay the costs of the successful party. However, the rule is not absolute (see Health Care Complaints Commission v Philipiah [2013] NSWCA 342 (Philipiah) and Oshlack v Richmond River Council [1998] HCA 11). 2. Where an applicant has been partially successful, but not wholly successful, in proceedings, that applicant may be ordered to pay the respondent's legal costs in relation to that portion of the action in which the applicant was unsuccessful (see James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [31]-[36], referring with approval to the remarks of Toohey J in the Federal Court in Hughes v Western Australian Cricket Association (1986) ATPR 40-748). 3. Costs are at the discretion of the Tribunal, and that discretion is to be exercised judicially. The issue cannot be resolved with mathematical precision and the discretion will often be exercised with regard being had to matters of impression and evaluation (see Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd [1993] FCA 259). 4. The purpose of an award of costs is to compensate a successful party. An award of costs is not for the purpose of penalising an unsuccessful party (see Philipiah at [42]–[45]).

Issues raised 1. It was argued in support of the Respondent's application for portion of his costs to be paid by the Applicant that the institution by the HCCC of the proceedings, in so far as they alleged professional misconduct, was not reasonable. This was said to be so because Patient A was found by the Tribunal to be unreliable, and it was argued that the HCCC ought to have undertaken an evaluation of the reliability of Patient A's evidence and ought not to have pursued the allegation of professional misconduct. In support of this argument, the following excerpt from the decision of Wood CJ in R v Manley (2000) 49 NSWLR 203 at 205 (Manley) a criminal prosecution, in which Wood CJ was quoting Blanch J in the unreported decision in McFarlane in 1994, was set out: In the ordinary course of events a prosecution may be launched where there is evidence to establish a prima facie case but that does not mean it is reasonable to launch a prosecution simply because a prima facie case exists. There may be cases where there is contradictory evidence and where it is reasonable to expect a prosecutor to make some evaluation of that evidence. 1. In response to this argument, the applicant pointed out that significant parts of the complaint were, in fact, withdrawn in the course of the proceedings. 2. It was further argued by the Applicant that, subsequent to the amendment of the complaint, the Respondent undertook extensive cross-examination of Patient A, from which it should be inferred that, at that time, the Respondent did not consider that Patient A was patently unreliable, but that her evidence required detailed testing by way of cross-examination. 3. In Manley, immediately subsequent to the extract quoted by the respondent in its submissions, Wood CJ continued: 13 These observations have been cited with approval by this Court in Fejsa (1995) 82 A Crim R 253 and Pavy CCA (NSW) 9 December 1997 unreported, in the former of which the Court observed, as did the Court of Appeal in NSW Treasurer v Wade CA(NSW) 16 June 1994 unreported, that it would be unwise to attempt to lay down any all-embracing definition of the circumstances in which it would be unreasonable to institute proceedings. 14 Given the wide variety of cases that might arise for consideration, I am similarly reluctant to attempt any exhaustive definition of the test. It seems to me that the section calls for an objective analysis of the whole of the relevant evidence, and particularly the extent to which there is any contradiction of expert evidence concerning central facts necessary to establish guilt, or inherent weakness in the prosecution case. Matters of judgment concerning credibility, demeanour and the like are likely to fall on the other side of the line of unreasonableness, being matters quintessentially within the realm of the ultimate fact finder, whether it be Judge or Jury. 15 Fejsa at 257 and Pavy at 5, each make it clear that the mere fact that this Court allows an appeal and enters a verdict of acquittal, upon the "unsafe and unsatisfactory" ground, as it was then comprehensively described, is not necessarily a touchstone for an exercise of the discretion in favour of the applicant. I agree with the observations to that effect, in those decisions. I also agree with Simpson J, that the onus falls upon the applicant to show that it was not reasonable to institute the proceedings. 1. In Manley, a statutory provision, which clearly has no application in this matter, was under consideration. It is relevant, though, in relation to an application for costs in proceedings such as these proceedings, to consider whether the applicant for disciplinary orders instituted the proceedings, or component complaints of the proceedings, unreasonably. 2. It is true that the Applicant was in possession of at least seven accounts by Patient A of the consultation complained of, and that those complaints contained many inconsistencies. However, I do not consider, in all of the circumstances, that it was plain on the face of those statements that Patient A's account was unreliable to the extent that the lodgement or pursuit of the proceedings was unreasonable. The Tribunal's findings as to credibility were based partly upon its assessment of Patient A's oral evidence (see Health Care Complaints Commission v Wilcox [2020] NSWCATOD 10 at [40-47]). In oral evidence, Patient A put forward explanations for the inconsistencies in her prior accounts of the consultation but her explanations did not resolve those inconsistencies for the Tribunal. 3. The Respondent argued that the matters in relation to which Dr Wilcox was determined to have engaged in unsatisfactory professional conduct were matters in relation to which Dr Wilcox had made admissions. This does not quite reflect the whole situation. The factual context for the allegation in relation to the issue of Dr Wilcox's conduct as Patient A disrobed was contested. Dr Wilcox, in evidence, said that he had very little recollection of the consultation in question. He said that what appeared to be admissions by him in a letter of 28 May 2018, which pre-dated the hearing, were not, in fact, admissions, but his attempt to explain what may have happened on the assumption that Patient A's allegations were true (see HCCC v Wilcox, [49]). Dr Wilcox also said that he was justified in not leaving the room and in not offering a gown whilst Patient A disrobed because it was appropriate for him to watch the disrobing as part of his assessment. Dr Wilcox did not admit unsatisfactory professional conduct. Findings of fact and determinations as to whether the conduct established amounted to unsatisfactory professional conduct were required. 4. The Respondent's submission that the institution or pursuit of the proceedings was unreasonable is rejected.

Conclusion 1. The HCCC has not sought a costs order against Dr Wilcox, despite being the successful party in the proceedings. 2. The Tribunal has the power to make a costs order in favour of Dr Wilcox in relation to those parts of the complaint in relation to which he was successful. The Tribunal has a discretion as to whether costs should be ordered, which must be exercised judicially. 3. In this matter, in all of the circumstances, and having regard to the evidence before the Tribunal, I do not consider that the HCCC should be ordered to pay Dr Wilcox's costs of any part of the proceedings.

Order 1. The Respondent's application for an award of costs in his favour is refused.

********** 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 May 2020