Marin v The Chiropractic & Osteopathy Board of South Australia (No 2)

[2009] SADC 43

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil)

MARIN v THE CHIROPRACTIC & OSTEOPATHY BOARD OF SOUTH AUSTRALIA (NO 2)

[2009] SADC 43

Judgment of Her Honour Judge Shaw

6 April 2009

PROCEDURE - COSTS - JURISDICTION - GENERAL

Costs - successful appeal from a decision of The Chiropractic & Osteopathy Board of South Australia - s42G of the District Court Act (SA) - whether order for costs of appeal necessary in the interests of justice - Held - no order for costs.

District Court Act 1991 s42G; The Chiropractic and Osteopathy Practice Act 2005 s20, referred to.
Marin v The Chiropractic and Osteopathy Board of South Australia & Anor [2008] SADC 173; Moore v The Registrar of the Medical Board (No. 2) [2001] SADC 141; (2002) 219 LSJS 448, considered.

MARIN v THE CHIROPRACTIC & OSTEOPATHY BOARD OF SOUTH AUSTRALIA (NO 2)
[2009] SADC 43

1. In this matter, the appellant successfully appealed to this Court against a determination by the Chiropractic and Osteopathy Board of South Australia (“the Board”), for the reasons set out in Marin v The Chiropractic and Osteopathy Board & Anor [2008] SADC 173. The Board had found the appellant guilty of unprofessional conduct in his practice as a chiropractor and ordered, inter alia, that his registration be suspended for a period of four months. I found that there were cogent reasons for allowing the appeal and I substituted an order that the registration of the appellant be suspended for a period of one month.

   Costs

2. The appellant made application for the costs of the appeal pursuant to s42G of the District Court Act 1991 (SA)

3. Section 42G of the District Court Act provides as follows:

   (1)The Court may, on an appeal, make any ancillary or consequential order that the Court considers appropriate.

   (2)However, no order for costs is to be made unless the Court considers such an order to be necessary in the interests of justice.

4. Both parties agreed that the effect of s42G of the District Court Act is that costs do not automatically follow the event.

5. I was referred to the consideration of s42G by Judge Smith in Moore v The Registrar of the Medical Board (No. 2)[1]. His Honour concluded that the effect of the provision was to deny costs to a successful party unless there were present considerations which made such an order necessary in the interests of justice[2].

   [1] [2001] SADC 141, (2002) 219 LSJS 448

   [2]    at para 15

6. His Honour stated:

   So in my view, the proper construction of s42G, and for that matter s42H, is that costs are not to be ordered simply on the basis of the successful outcome of the litigation. Rather, the phrase “necessary in the interests of justice” requires that there be some unusual or out of the ordinary feature of the contest which demonstrates that one party, in the interests of justice, is entitled to an order for costs. In the ordinary course, a successful outcome will be but a qualifying requirement. To succeed in obtaining an order, something further would need to be established[3].

   [3]    para 16

   Appellant’s Submissions

7. The appellant submitted, inter alia, that the Board’s decision was found to be defective in numerous respects. The defects were not contributed to by the conduct of either party. Indeed, counsel for the Registrar had recommended to the Board that a period of suspension from practice for one month would be an appropriate order. Of course, the Board was not bound by the recommendation of the Registrar.

8. The appellant further contended that the interpretation of s20 of the Chiropractic and Osteopathy Practice Act 2005 (“the Act”) was a matter of significant importance in relation to disciplinary proceedings. The Board was found to have misunderstood and misapplied this provision. Therefore, the appeal to this Court, at least in that respect, was in the public interest.

9. Finally, the appellant contended that a combination of circumstances peculiar to this case took it outside the usual or normal case and supported an order for costs in the public interest.

   Findings

10. I accept the appellant’s submissions that it was important for the appellant to pursue the appeal to this Court, and indeed that there was a public interest in relation to the interpretation of s20 of the Act.

11. However, in my view, the proceedings before the Board were properly instituted in respect of serious unprofessional conduct on the part of the appellant.  The admissions of unprofessional conduct by the appellant confirm that such proceedings were necessary in the public interest. Although the Board made errors which were found to have vitiated its findings, and resulted in substituted orders, I am not satisfied that any combination of circumstances or, indeed, any of the factors upon which the appellant relied, justify a conclusion that an award of costs against the respondent is “necessary in the interests of justice”.

12. Accordingly, I decline to make an order in relation to the costs of the appeal.