ROBERTS V A PROFESSIONAL CONDUCT COMMITTEE OF THE NURSING COUNCIL OF NEW ZEALAND HC WN CIV-2012-404-003916

ROBERTS V A PROFESSIONAL CONDUCT COMMITTEE OF THE NURSING COUNCIL OF NEW ZEALAND HC WN CIV-2012-404-003916 [14 March 2013]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV-2012-404-003916[2013] NZHC 442UNDER the Health Practitioners CompetenceAssurance Act 2003IN THE MATTER OF an appeal pursuant to s 106(2)(a) and (b)against orders of the New Zealand HealthPractitioners Disciplinary TribunalBETWEEN MICHAEL ROBERTSAppellantAND A PROFESSIONAL CONDUCTCOMMITTEE OF THE NURSINGCOUNCIL OF NEW ZEALANDRespondentJudgment (on the papers): 14 March 2013JUDGMENT AS TO COSTS OF COLLINS JIntroduction[1] Mr Roberts was found guilty of professional misconduct by the New Zealand Health Practitioners Disciplinary Tribunal (the Tribunal) in relation to a personal relationship he had with a patient. The Tribunal ordered suspension of Mr Roberts'registration as a nurse for three years.[2] Mr Roberts appealed the penalty aspect of that decision to the High Court on the basis that the three year suspension was excessive and unreasonable. The Professional Conduct Committee of the Nursing Council of New Zealand (PCC) cross-appealed the penalty claiming that the appropriate penalty should have beenthe cancellation of Mr Roberts' registration.[3] In a decision dated 12 December 2012,1 I allowed Mr Roberts' appeal andsubstituted the penalty imposed by the Tribunal with one of 18 months' suspension.As a consequence the PCC's cross-appeal was dismissed.[4] I invited counsel to file memoranda on costs if they were not satisfied in letting costs lie where they fell. Mr Roberts has since filed a memorandum seeking costs. His application for costs is opposed by the PCC.General principle on costs[5] The general principle prescribed by the High Court Rules in respect of thisCourt's civil jurisdiction2 is that costs should follow the event, and be awarded to a successful party against an unsuccessful party.3 Under Rule 14.7 the Court has a discretion to refuse to order costs if one of the grounds in (a)-(g) are made out. Rule 14.7(g) states that costs may not be awarded if "some other reason exists whichjustifies the court refusing costs or reducing costs despite the principle that thedetermination of costs should be predictable and expeditious." In Manukau Golf Club Inc v Shoye Venture Ltd,4 the Supreme Court also required a reason for departure from the general regime on costs contained in the High Court Rules.Costs in proceedings before the Tribunal[6] The PCC are responsible for laying charges of professional misconduct against members of the nursing profession and prosecuting those charges before the Tribunal.5 Section 101(1)(f) of the Health Practitioners Competence Assurance Act 2003 (the Act) allows the Tribunal to order costs in favour of the PCC. However, the Tribunal cannot award costs against the PCC if they find that a charge is not made1 Roberts v A Professional Conduct Committee of the Nursing Council of New Zealand [2012]NZHC 3354.2 It is now accepted that disciplinary proceedings are civil proceedings. Refer Guy v MedicalCouncil of New Zealand [1995] NZAR 67 (HC) at 80, Complaints Assessment Commissioner vMedical Practitioners Disciplinary Tribunal [2006] NZSC 48, [2006] 3 NZLR 577 at [19] and Zv Complaints Assessment Committee [2007] NZCA 91, [2008] 1 NZLR 65 at [24]. CfGurusinghe v Medical Council of New Zealand [1989] 1 NZLR 139 (HC).3 High Court Rules, r 14.2(a).4 Manukau Golf Club Inc v Shove Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 285.5 Health Practitioners Competence Assurance Act 2003, s 91.out. In that sense, Parliament has treated the PCC as being in a different position to ordinary parties to civil proceedings.[7] The rationale for Parliament's approach is that the PCC performs a public function, and is charged under the Act with protecting the health and safety of members of the public by providing mechanisms to ensure that health practitioners are competent and fit to practise their professions.6 The PCC performs this role by investigating complaints against health professionals and, if appropriate, laying and prosecuting charges before the Tribunal.7[8] The position of the PCC can be contrasted with the position of Standards Committees in disciplinary proceedings against legal practitioners. Standards Committees established by the New Zealand Law Society are responsible for determining complaints against legal practitioners, and if the situation warrants it, laying an appropriate charge before the New Zealand Lawyers and Conveyancers Disciplinary Tribunal.8 After hearing a charge, the Disciplinary Tribunal has the power to award costs to any person to whom the proceeding relates, as it sees fit.9Specifically, s 249(2) of the Lawyers and Conveyancers Act 2006 provides that theTribunal can order the New Zealand Law Society pay the practitioner's costs.Therefore, unlike the PCC, it is foreseeable that the prosecuting body responsible for laying disciplinary charges against law practitioners could be subject to an adverse costs award at the Disciplinary Tribunal level.[9] The unique position of the PCC in the framework of proceedings under the Act raises the issue of whether, on appeal to this Court, the same principles apply in respect of costs. Should the PCC's immunity from adverse costs awards before the Tribunal displace the general rule in this Court that the successful party is entitled to costs following determination of the appeal?6 Section 3.7 Section 80.8 Lawyers and Conveyancers Act 2006, s 1549 Section 249.Mr Roberts' arguments[10] Mr Roberts contends that the general principles on costs should apply to all civil proceedings in the High Court. As his appeal was wholly successful, and the cross-appeal unsuccessful, he should be entitled to costs.[11] In support of that argument, Mr Waalkens QC, counsel for Mr Roberts, submits that the PCC is not in a special position because of its public function, and it is well placed to meet a costs award (as evident from its Annual Report), and thus it should be subject to the normal rules that apply to any other party to civil proceedings. In support of his submission, Mr Waalkens cites two cases where costs have been awarded against the relevant PCC, or Complaints Assessment Committee (CAC), after a successful appeal by a practitioner.[12] The first is Patel v Complaints Assessment Committee.10 The High Court allowed an appeal by a dentist, Dr Patel, against an order made by the Dentists Disciplinary Tribunal removing him from the dental register, and substituted a different penalty. The Court cited the principle in the High Court Rules that the successful party is entitled to costs following the event, but that should not be applied universally in this area.11 The CAC advanced the same argument as the PCC in this case, that as a prosecuting authority, it is required to protect the public interest and should be subject to an adverse costs award.[13] The High Court rejected this argument and held that the Court could make an award of costs against the CAC in appropriate cases, notwithstanding its public function. Two features of that case justified such an award:(1) The Tribunal's decision did not provide reasons for removal of Dr Patel, or consider alternatives to removal. This was despite a High Court decision in earlier proceedings against the same dentist recommending the appropriate penalties, and stating that Dr Patel could only be removed from the dental register if the alternatives10 Patel v Complaints Assessment Committee HC Auckland CIV-2007-404-1818, 31 October 2007.11 At [7].were considered and deemed inappropriate. The failure of the Tribunal to heed those words made the appeal inevitable and very likely to succeed.12(2) The CAC had opposed a stay of the Tribunal's decision pending theappeal, in circumstances where the chances of a stay being granted were high as the appeal hearing was imminent.[14] The second case Mr Waalkens relies on is F v Medical Practitioners Disciplinary Tribunal,13 where the practitioner had unsuccessfully appealed the Tribunal's finding of "conduct unbecoming of a medical practitioner" to theDistrict Court and High Court. On further appeal the Court of Appeal found in favour of the practitioner in respect of two questions of law arising out of the High Court decision, and awarded costs against the CAC.[15] The Court of Appeal did not provide reasons for the award of costs. However, it remarked on the patent unfairness of the proceedings against Dr F, and William Young J in particular, writing separately, commented on the whole process as having miscarried against Dr F.14 Part of the unfairness was due to the delays in charges being brought against Dr F, and the three years it took to go through the Tribunal process and three different appeals. Within those proceedings a number of factors generated unfairness to Dr F, such as the absence of witnesses who could have shed more light on the conduct in question, misplacement of key documents, and the incorrect formulation of the charge. The charge concerning Dr F's alleged clinical shortcomings contemplated an obligation on him to ensure a particular outcome rather than adhere to a standard of reasonable care, and this inelegant drafting distracted the tribunal and lower courts from the true enquiry. William Young J held that this "shifting of ground" of the case against Dr F resulted in real unfairness to him.1512 At [12].13 F v Medical Practitioners Disciplinary Tribunal [2005] 3 NZLR 774 (CA).14 At [91].15 At [99].[16] William Young J commented that no reasonable tribunal could sensibly havereached the conclusion that the practitioner's conduct, which involved an isolatedinstance of low culpability negligence, reflected adversely on the practitioner'sability to practice.[17] Mr Waalkens also submits that it is in the interests of the profession that the PCC and by extension the profession pay the costs of successful appeals against Tribunal decisions. He says it is in the profession's interest as a whole that effective disciplinary processes exist, including a right to appeal any adverse findings and penalty, and it is also in the professions interest that appeals are pursued to allow appellate Courts to set standards for the profession.Conclusions on when costs awards are appropriate[18] The authorities cited by Mr Waalkens illustrate that the PCC, or a similarprosecuting body, is not immune from an adverse costs award once the High Court'scivil jurisdiction is engaged in an appeal against a decision of the Tribunal. However, it does not follow that the High Court rules on costs should universally apply, and that costs will be awarded in every case where an appeal is successful.The PCC's immunity from costs awards from the Tribunal because of the important public function that the PCC performs constitutes significant reasons for departing from the High Court rules in this respect, as it is not in the public interest for the PCC to be exposed to a potential adverse costs award on every appeal by a practitioner. Instead, in my judgement, there would need to be a compelling reason why a successful appellant should be awarded costs. A compelling reason may be found in the procedural history or the substantive merits of the appeal itself. I recognise that this is applying a higher threshold for costs than is ordinarily the case in civil proceedings in the High Court.[19] Compelling reasons are evident in both cases cited in support of Mr Waalkens' submissions.[20] However, compelling reasons to award costs against the PCC do not exist in the present case in relation to Mr Roberts' appeal. There was nothing in theprocedural history or substantive arguments which meant Mr Roberts' appeal wasbound to succeed.[21] Mr Waalkens claims that the PCC was essentially misguided in opposing Mr Roberts' appeal, and lodging a cross-appeal. Mr Waalkens claims that it was open for the PCC to acknowledge the Tribunal errors, accept that an appeal was inevitable, and consent to a reduced term of suspension. In this submission Mr Waalkens relies on Paltridge v Professional Conduct Committee where,16 in somewhat different circumstances, the PCC did not defend an appeal of a Tribunal decision where the PCC was awarded 50 per cent costs. In that case the PCC simply recognised the Tribunal's error and did not oppose the variation to 35 per cent. That case is clearly distinguishable as the error was procedural, whereas in this case theerrors in penalty imposed go to the core of the PCC's function, and for them tosimply accede to a request for reduction in penalty would undermine the disciplinary function they perform.[22] Mr Waalkens' submission invites the conclusion that the Tribunal errors were so patent that the PCC were misguided in opposing the appeal. If this were the case, it would amount to a compelling reason to award costs in favour of Mr Roberts. However, I am not persuaded that the errors made by the Tribunal can be described as obvious and patent.[23] This was an appeal against the penalty imposed by the Tribunal, which I held was an exercise of its discretion.17 Therefore, the issues of appropriate penalty were more finely balanced, and required a certain degree of judgement. In that sense the PCC was entitled to oppose the appeal and advocate for the penalty which they deemed to be appropriate. The errors of the Tribunal were not so manifest that the PCC should not have at least responded to the appeal. In saying that, the cross- appeal lacked merit and was doomed to fail.[24] I cannot find a compelling reason to award costs to Mr Roberts in relation to his appeal. However, as the cross-appeal was doomed to fail I conclude Mr Roberts16 Re Paltridge HPDT 382/Med11/172P, 8 June 2011.17 Roberts v A Professional Conduct Committee of the Nursing Council of New Zealand [2012]NZHC 3354 at [43].is entitled to costs for successfully defending the cross-appeal. I assess the costs for the cross-appeal to be 25 per cent of the total costs that would otherwise have been awarded. Costs should be on a scale 2B basis. Thus, Mr Roberts is entitled to 25 per cent of the costs that would otherwise be awarded on a scale 2B basis.____________________D B Collins JSolicitors:New Zealand Nurses Organisation, Auckland for AppellantThomas Dewar Sziranyi Letts, Lower Hutt for Respondent