| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010 CITATION : GEORGE and NURSING AND MIDWIFERY BOARD OF AUSTRALIA [2013] WASAT 202 (S) MEMBER : MR M SPILLANE (SENIOR MEMBER) MR T CAREY (MEMBER)
MS E PAVLOS (SESSIONAL MEMBER)
HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 2 MAY 2014 FILE NO/S : VR 61 of 2013 BETWEEN : DINOL GEORGE Applicant
AND
NURSING AND MIDWIFERY BOARD OF AUSTRALIA
Respondent
Catchwords: Health Practitioner National Law Nursing and Midwifery Board of Australia Costs application Turns on own facts Legislation: Health Practitioner Regulation National Law (WA) Act 2010
State Administrative Tribunal Act 2004 (WA), s 24(b), s 74(b), s 87, s 87(1), s 87(2), s 87(4) Result: Respondent's costs application successful
Summary of Tribunal's decision: On 17 December 2013, the Tribunal dismissed Ms George's application to review the Nursing and Midwifery Board of Australia's refusal to register her as a registered nurse and midwife in Australia.
The Nursing and Midwifery Board of Australia applied for its costs and that was the issue determined in these reasons.
Having considered the submissions received and the statutory provisions of the State Administrative Tribunal Act 2004 (WA), the Tribunal decided that, although in normal circumstances each party bears its own costs, in the present case, due to the applicant's failure to comply with various orders of the Tribunal and the lack of any real effort to prosecute the review in circumstances where the respondent was a body carrying out a statutory function in the public interest, costs should be awarded.
The respondent was awarded the sum of $1,832.10 for costs.
Category: B
Representation: Counsel:
Applicant : In Person
Respondent : Ms A Farnworth
Solicitors:
Applicant : N/A
Respondent : Australian Health Practitioner Regulation Agency
Case(s) referred to in decision(s):
George and Nursing and Midwifery Board of Australia [2013] WASAT 202
Palatty and Nursing and Midwifery Board of Australia [2013] WASAT 78REASONS FOR DECISION OF THE TRIBUNAL:
Background 1 On 17 December 2013 the Tribunal published reasons for decision in George and Nursing and Midwifery Board of Australia[2013] WASAT 202 (George), in which it affirmed the Nursing and Midwifery Board's (respondent) decision to refuse the applicant's application for registration and the application for review was dismissed. 2 At [31] to [33] in George, under the heading 'Costs', the Tribunal stated: At paragraph 35 of its submission, the respondent submitted that if the Tribunal found in its favour, costs should be awarded, and at paragraphs 36 and 37 the respondent went on to outline the reasons why it believed it was appropriate for the Tribunal to exercise its discretion in respect of costs in its favour. The respondent did not claim any particular amount of costs, nor provide any other particulars of costs claimed. The applicant's submissions were drafted and filed prior to the respondent's submissions, and consequently she has not addressed the issue of the respondent's costs. She should be given an opportunity to do so. The Tribunal's order indicates the manner in which the respondent's costs claim will be managed through to its determination. 3 Then, having dealt with the applicant's substantive application in orders 1 and 2, the Tribunal made the following orders: 3. The respondent shall by 17 January 2014 file and serve a schedule of costs claimed in sufficient detail to enable the Tribunal to assess and fix any costs which might be awarded. 4. The applicant may on or before 31 January 2014 file any submissions she wishes to make in respect of the respondent's application for costs. 5. The Tribunal shall, on or after 1 February 2014, determine the respondent's application for costs on the documents, and if costs are awarded, shall fix the amount of such costs. 4 In compliance with those orders, the respondent filed submissions and furnished a 'Schedule of Costs Claimed' (Schedule) with the Tribunal on 16 January 2014. A copy of the schedule is attached. 5 The applicant filed no submissions opposing the respondent's application for costs. Rather, on 14 January 2014, she filed a document seeking costs in her own right in the amount of $4,314. 6 Section 87 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) deals with the issue of costs of proceedings before the Tribunal, with s 87(1) recognising that parties generally bear their own costs. Section 87(2) of the SAT Act allows the Tribunal to make orders for costs and in their text Guide to Proceedings in the Western Australian State Administrative Tribunal (Lawbook Co Thomson Reuters, 2012), Parry and De Villiers at paragraph 1072, in dealing with the issue of costs in review proceedings, state: The Tribunal's established practice in relation to the exercise of its discretion as to costs under s 87(2) of the [State Administrative Tribunal Act 2004 (WA) (SAT Act)] in review proceedings (including vocational review proceedings and valuation of land review proceedings) is that normally each party should bear its own costs of the proceedings. As Barker J observed, SAT was established with its review jurisdiction as part of the system of public administration of the State to ensure that citizens and other entities may seek administrative justice in relation to decisions that affect their personal, propriety and financial interests. An applicant should not be discouraged from seeking administrative justice by the prospect of having to pay the decisionmakers costs if they do not succeed. Conversely, an applicant is not entitled to an award of costs if they succeed. Section 87(4) of the SAT Act provides that, without limiting anything else that may be considered in making an order for the payment by a party of another party's costs in review proceedings, the Tribunal is to have regard to: • whether the party (in bringing or conducting the proceedings before the original decisionmaker) genuinely attempted to enable and assist the original decisionmaker to make a decision on its merits; • whether the party (being the original decisionmaker) genuinely attempted to make a decision on its merits. Costs orders are only generally made in review proceedings where a party has acted unreasonably including where a party has failed to meet the expectation expressed in s 87(4) of the SAT Act. 7 In respect of vocational disciplinary proceedings, Parry and De Villiers state at paragraph 1703: The Tribunal's established practice in relation to the exercise of its discretion as to costs under s 87(2) of the SAT Act in vocational disciplinary proceedings is that a successful application by a vocational regulatory body for disciplinary action by the Tribunal will usually lead to an order for costs being made in favour of the vocational regulatory body. 8 That is not the case here as the substantive application fell within the Tribunal's review jurisdiction and the provisions of s 87(4) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) referred to above are relevant. 9 The present matter first came before the Tribunal in March 2013, and on 18 June 2013 the Tribunal made orders sending the matter to mediation. 10 On the same date, 18 June 2013, the respondent provided the applicant with a copy of the Tribunal's decision in a similar matter: Palatty and Nursing and Midwifery Board of Australia [2013] WASAT 78 (Palatty) which was effectively on all fours with the applicant's case and clearly sets out issues the applicant needed to address to be successful. 11 Indeed in the Tribunal's final decision in the substantive hearing in George delivered on 17 December 2013, the Tribunal referred to that very issue and at [21] stated: The applicant holds qualifications similar to the applicant in Palatty, namely, a 'Diploma in General Nursing and Midwifery'. It is for the applicant to satisfy the National Board, or alternatively this Tribunal, that the qualifications she holds are approved qualifications for general registration in Australia as at the relevant date. 12 The applicant had made no effort to address those issues or comply with the requirements set out in Palatty. 13 Further, the Tribunal dealt with the applicant's contention that the Nursing and Midwifery Board of Australia had already accepted the same level of qualification by again relying on the reasons in Palatty as follows (George at [26]): [T]his Tribunal dealt with that issue in Palatty, and stated at [48] and [49]: 14 Relevantly for present purposes, the applicant maintained her position through to the hearing without making any submissions to support it. Indeed, the applicant failed to furnish any meaningful submissions on any issue raised by the review proceedings. An example of the submissions filed on behalf of the applicant can be seen in her response to Order 1 of 20 August 2013 in the substantive matter. 15 Order 1 had stated 'on or before 3 September 2013 the applicant is to file with the Tribunal and send to the respondent submissions setting out why she contended her application should be granted'. 16 The only documentation received in compliance with that order, was referred to, and set out, at [10] of the Tribunal's original decision of 17 December 2013 as follows: In compliance with order 1 the Tribunal received an email at 7.24 pm on 4 September 2013 on behalf of the applicant which attached a letter addressed to the Tribunal stating: … Subject: Registration with the NMBA Reference: Order of Justice Chancy [sic] on 20th August 2013 1. My application form registration with the nursing and Midwifery board of Australia received on 28-06-011 [sic] 2. My registration fee and all documents are submitted the same day 3. I have loss [sic] some of Amount approximately &5000 [sic] Australian Dollars. 4. So please give me the registration with the NMBA. Yours Sincerely Dinol George 17 The applicant also made little or no effort to partake in the mediations organised by the Tribunal. 18 Examples of the applicant's failures to attend mediation, despite the Tribunal's efforts,` can be seen from various examples of orders which are as follows: 19 Orders made on 9 July 2013 stated: 20 On 23 July 2013 it was ordered: 1. The matter is referred to mediation to commence at 10 am on 8 August 2013 for a duration of two hours on the basis that the applicant will be represented at the mediation failing which the matter will be struck out for want of prosecution. 21 On 8 August 2013 the Tribunal ordered: 22 Finally, on 20 August 2013, orders were made programming the matter through to a final decision on the documents, which was published on 17 December 2013, when the respondent's original decision was confirmed and the applicant's application was dismissed. 23 On examining the bundle of documents filed by the respondent pursuant to s 24(b) of the SAT Act, there is nothing to suggest that the applicant behaved in a way, when dealing with the matter before the original decision-maker, which might be classified as not genuine in attempting to assist the original decision-maker to make a decision on its merits. Nor was any such submission made by the respondent. 24 However, as stated in s 87(4) of the SAT Act, this does not limit anything else that may be considered when making an order for payment by a party of another party's costs in review proceedings. 25 In dealing with the matter before this Tribunal, it is clear, as set out above, that the applicant made little or no effort to properly prosecute her case, particularly in light of the issues that needed to be dealt with by the applicant and which had clearly been set out in Palatty, a copy of which had been furnished to her. 26 The applicant's submissions were poor and sketchy at best with little or no effort made to address the relevant issues. Furthermore, her non-attendance at directions and mediations, whether by phone or being represented, despite various warnings, was unhelpful to both the Tribunal and the respondent. 27 Indeed, the respondent submitted that it was put to unnecessary expense by having to attend a number of directions hearings and mediations which the applicant failed to attend, in circumstances where the respondent was performing a function which promotes the public interest with limited resources. 28 Although the Tribunal recognised that the applicant resides in India and was unrepresented, even a minimal effort on her behalf to comply with the Tribunal's orders may have saved significant time and cost. Even when addressing the orders in this costs application, no effort was made to address the respondent's submissions or meet the case made. 29 In all the above circumstances, the Tribunal considers this to be an appropriate case where costs should be awarded, but limited to the respondent's costs incurred since 18 June 2013. That was the date of the Tribunal's direction hearing when the matter was referred to mediation and which happens to coincide with the date on which the respondent furnished the applicant with a copy of the Palatty decision. 30 As to the amount of costs to be awarded, the respondent furnished a schedule for a total of 30 items totalling a sum of $2,140.30. Of the total amount, $308.20 relates to the period up to and including our cutoff date of 18 June 2013. This leaves a balance of $1,832.10. 31 Being satisfied that all charges comprising this figure are reasonable, in terms of both their incidence and amount, there will be an order for the respondent's costs fixed at $1,832.10. Orders The Tribunal makes the following orders: 1. Costs in the sum of $1,832.10 are awarded to the respondent. 2. The applicant shall pay the respondent the costs awarded in order 1 above within 28 days of the date of these orders. SCHEDULE OF COSTS CLAIMED No | Date | Description | Practitioner | Time (Hours) | Cost | 1. | 26/03/13 | Arranging for new file to be opened and for all relevant documents to be collated | Amelia Farnworth | 0.5 | $33.50 | 2. | 03/04/13 | Reviewing Tribunal Application and applications for registration | Amelia Farnworth | 0.4 | $26.80 | 3. | 09/04/13 | Getting up for and attending directions hearing | Amelia Farnworth | 2.2 | $147.40 | 4. | 10/04/13 | Drafting email to Applicant | Amelia Farnworth | 0.2 | $13.40 | 5. | 18/06/13 | Getting up for directions hearing | Amelia Farnworth | 0.3 | $20.10 | 6 | 18/06/13 | Attending directions hearing | Amelia Farnworth | 0.7 | $46.90 | 7. | 18/06/13 | Reviewing email from Tribunal | Amelia Farnworth | 0.1 | $6.70 | 8. | 18/06/13 | Drafting email to the Applicant | Amelia Farnworth | 0.2 | $13.40 | 9. | 08/07/13 | Getting up for mediation | Amelia Farnworth | 0.5 | $33.50 | 10. | 09/07/13 | Getting up for mediation | Amelia Farnworth | 0.3 | $20.10 | 11. | 09/07/13 | Attending mediation | Amelia Farnworth | 2.5 | $167.50 | 12. | 23/07/13 | Getting up for and attending directions hearing | Amelia Farnworth | 0.6 | $40.20 | 13. | 07/08/13 | Getting up for mediation | Amelia Farnworth | 0.5 | $33.50 | 14. | 08/08/13 | Attending mediation | Amelia Farnworth | 1.6 | $107.20 | 15. | 19/08/13 | Getting up for directions hearing | Amelia Farnworth | 0.3 | $20.10 | 16. | 20/08/13 | Attending directions hearing | Amelia Farnworth | 1.3 | $87.10 | 17. | 23/08/13 | Drafting and preparing section 24 bundle | Amelia Farnworth | 3.2 | $214.40 | 18. | 26/08/13 | Drafting and preparing section 24 bundle | Amelia Farnworth | 0.4 | $26.80 | 19. | 27/08/13 | Drafting email to applicant and scanning bundle of documents in order to serve | Amelia Farnworth | 0.4 | $26.80 | 20. | 04/09/13 | Drafting letter to the Tribunal | Amelia Farnworth | 0.3 | $20.10 | 21. | 05/09/13 | Reviewing correspondence from Tribunal and Applicant's submissions | Amelia Farnworth | 0.4 | $26.80 | 22. | 16/09/13 | Drafting Statement of Issues, Facts and Contentions | Amelia Farnworth | 3.4 | $234.60 | 23. | 17/09/13 | Drafting Statement of Issues, Facts and Contentions | Amelia Farnworth | 1.5 | $103.50 | 24. | 20/09/13 | Drafting Statement of Issues, Facts and Contentions | Amelia Farnworth | 2.2 | $151.80 | 25. | 23/09/13 | Drafting Statement of Issues, Facts and Contentions, including consideration of relevant case law | Amelia Farnworth | 3.7 | $255.30 | 26. | 23/09/13 | Settling Statement of Issues, Facts and Contentions | Kristy Bradshaw | 0.5 | $51.00 | 27. | 24/09/13 | Researching relevant case law | Amelia Farnworth | 1.5 | $103.50 | 28. | 25/09/13 | Settling Drafting Statement of issues, Facts and Contentions | Kristy Bradshaw | 0.25 | $25.50 | 29. | 25/09/13 | Amending Statement of Issues, Facts and Contentions and drafting letter to Tribunal | Amelia Farnworth | 0.70 | $48.30 | 30. | 17/12/13 | Conferring with Tribunal regarding case law referred to in Statement of Issues, Facts and Contentions and provision of relevant case | Amelia Farnworth | 0.5 | $34.50 | TOTAL: | 31.15 | $2,140.30 |
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