Medical Board of Australia and McCarthy [No 2]

[2020] WASAT 139

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT:   HEALTH PRACTITIONER NATIONAL LAW (WA) ACT 2010 (WA)

CITATION:   MEDICAL BOARD OF AUSTRALIA and MCCARTHY [No 2] [2020] WASAT 139

MEMBER:   MS C BARTON, MEMBER

HEARD:   DETERMINED ON THE DOCUMENTS

DELIVERED          :   5 NOVEMBER 2020

FILE NO/S:   VR 182 of 2016

BETWEEN:   MEDICAL BOARD OF AUSTRALIA

Applicant

AND

PETER MCCARTHY

Respondent

Catchwords:

Practice and procedure - Costs - Costs assessment - Bill of costs for assessment - Scale of fees

Legislation:

Criminal Code (WA), s 143
Health Practitioner National Law (WA) Act 2010 (WA)
Legal Profession (State Administrative Tribunal) Determination 2016 (WA), cl 6, Sch 1, Table A
Legal Profession (State Administrative Tribunal) Determination 2018 (WA)
State Administrative Tribunal Act 2004 (WA), s 9, s 87(2)

Result:

Costs assessed

Category:    B

Representation:

Counsel:

Applicant	:	N/A
Respondent	:	N/A

Solicitors:

Applicant	:	Tottle Partners
Respondent	:	Butcher Paull & Calder

Case(s) referred to in decision(s):

Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (S)

Medical Board of Australia and McCarthy [2020] WASAT 12

Medical Board of Australia and McCarthy [2020] WASAT 12 (S)

Panegyres v Medical Board of Australia [2020] WASCA 58

Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [No 2] [2008] WASAT 302

Rae and Prima Homes Nominees Pty Ltd [2020] WASAT 24

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1. On 20 January 2020, the Tribunal made a finding against the respondent of professional misconduct.  In its decision on penalty and costs in Medical Board of Australia and McCarthy [2020] WASAT 12 (S) (McCarthy (S)), the Tribunal ordered, inter alia, that the respondent pay the applicant's costs of VR 182 of 2016 (proceeding).

2. Because the parties were unable to agree on the quantum of costs, the applicant (Board) is seeking an order from the Tribunal for its costs in the proceeding to be assessed in the sum of $230,725.08.

Background to costs dispute

1. On 28 October 2016, the Board filed an application with the Tribunal for a finding against the respondent of professional misconduct under the Health Practitioner Regulation National Law (WA) Act 2010 (WA). The application was listed for hearing to commence on 21 August 2017. On 17 August 2017, the respondent was charged with an offence relating to his conduct in respect of the subject of the proceeding. He was convicted of attempting to pervert the course of justice pursuant to s 143 of the Criminal Code (WA) and sentenced to a term of imprisonment of 12 months.

2. The Board agreed to the adjournment of the proceeding until the conclusion of the criminal trial.  The proceeding was re-listed for a hearing to commence on 25 June 2019 for a duration of seven days but the hearing dates were vacated following a further application filed by the Board on 12 February 2019 arising from the respondent's criminal conviction (VR 17 of 2019).  The respondent sought leave to appeal his conviction.  Consequently, VR 17 of 2019 was adjourned by the Board pending the determination of the respondent's criminal appeal.

3. In the end, the proceeding was heard on 25 November 2019 and the remaining hearing days were vacated because on 22 November 2019 the respondent decided not to participate in the final hearing.  On 20 January 2020, the Tribunal made its decision in Medical Board of Australia and McCarthy [2020] WASAT 12 (McCarthy), including an order finding that the respondent behaved in a manner that constitutes professional misconduct. 

4. On 30 June 2020, the Tribunal made its decision on penalty and costs in McCarthy(S), including an order pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA) that the respondent pay the Board's costs in an amount agreed between the parties or, failing agreement, to be fixed by the Tribunal. Because the parties were unable to agree on the quantum of the Board's costs, the Board filed a Bill of Costs for Taxation on 18 August 2020 (Bill of Costs).

5. On 22 October 2020, the respondent filed with the Tribunal a table of objections to the Bill of Costs following leave granted by the Tribunal.  It is not contested by the respondent that the Board incurred legal fees and disbursements that are the subject of the Bill of Costs.

Principles relevant to the assessment of costs

1. In Panegyres v Medical Board of Australia [2020] WASCA 58 at [415], Vaughan JA provided the following guidance on the minimum amount of information required by the Tribunal to ensure it is in a position to evaluate and assess a claim to costs:

   The Tribunal should, however, ensure that it is in a position to evaluate and assess the Board's claim as to costs.  At the least this requires that the Tribunal be appropriately informed as to the work done and time taken as is claimed for and the rates which are said to apply to that work.  The detail required in this respect is a matter for the Tribunal.  It may take the form of an affidavit attaching the tax invoices as charged.  Alternatively, the Tribunal may consider it appropriate to require a short form bill of costs[.]

2. An assessment of costs should be approached in a broad fashion and should not descend into an inquiry into small items of expenditure:  Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [No 2] [2008] WASAT 302 at [67]. Although the assessment of costs involves a relatively broad and robust approach, the Tribunal must be satisfied that the costs claimed are reasonable and necessary: Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (S) at [48]­[49]. The Tribunal must also be satisfied that the costs claimed are not excessive in nature: Rae and Prima Homes Nominees Pty Ltd [2020] WASAT 24 at [69].

3. Applying the above principles, the Tribunal has undertaken an assessment of the Bill of Costs.

Tribunal's assessment of costs

1. For the purposes of the costs assessment, the Board provided the Tribunal with a Bill of Costs comprising:

   1)82 separate cost items totalling $209,531.85 (inclusive of GST) in legal fees (548.9 hours) incurred by the Board between 3 October 2016 and 30 March 2020; and

   2)a list of disbursements incurred by the Board between 28 October 2016 and 20 December 2019 totalling $21,193.23 (inclusive of GST).

2. The legal work, the subject of the Bill of Costs, was completed by two senior lawyers, being a senior practitioner employed by Tottle Partners and counsel briefed by the Board in the proceeding. There is no suggestion by the respondent that the Board's engagement of counsel was not justified in the circumstances. The Tribunal finds that the items claimed by the Board between 3 October 2016 and 30 June 2018 are at the rates prescribed in Table A in cl 6, Sch 1 to the Legal Profession (State Administrative Tribunal) Determination 2016 (WA), being the maximum allowable hourly and daily rates (inclusive of GST) on a legal practitioner/client basis. Also, the items claimed by the Board between 1 July 2018 and 30 June 2020 are at the rates similarly prescribed under the Legal Profession (State Administrative Tribunal) Determination 2018 (WA) (Determinations).

3. The respondent filed objections to a majority of the 82 items in the Bill of Costs.  The Tribunal must consider whether the costs claimed by the Board (whether or not the subject of an objection by the respondent) are reasonable and necessary.  The objections made by the respondent fall into four broad categories.

4. First, the respondent contends that the junior practitioner or clerical rate in the Determinations should be applied for less complex tasks performed by the senior practitioner. The Tribunal considers that the complexity of the proceeding warranted the Board's reliance on a senior practitioner and that it is reasonable that the work performed by that practitioner is at the senior hourly rate.

5. Second, the respondent contends that the costs claimed by the Board for its attendances at directions hearings is excessive. Because the Determinations do not prescribe maximum amounts for specified items such as appearances, the respondent has referred the Tribunal to the Standard Costs Orders for Interlocutory Applications in cl 4.7.1.1 of the Supreme Court Consolidated Practice Directions (Practice Directions) which specify the fees that may be claimed for case management conferences.  The items in the Bill of Costs which the respondent contends are excessive includes time preparing for each directions hearing and, in respect of item 42, work undertaken as a consequence of the directions hearing on 26 March 2019.  The Tribunal does not accept that the amounts prescribed in the Practice Directions are relevant to this proceeding.  In relation to the items that relate to the Board's attendance at directions hearings (and consequential work performed), the Tribunal is satisfied that the costs claimed are reasonable and appropriate.

6. Third, the respondent contends that the costs in getting up for hearing on 17 August 2017 and the final occasion (up to 25 November 2019) are excessive and lack detail.  The respondent further contends that counsel for the Board was not 'approaching her task de novo' because of her substantial prior involvement in the proceeding.  The Tribunal recognises that the Board spent time preparing its case for the hearing on 17 August 2017 which was adjourned at the request of the respondent.  The Tribunal considers that the costs claimed by the Board in getting up for hearing on 17 August 2017 are reasonable and should be allowed in full.  The Tribunal is also satisfied that the time spent getting up for hearing on 25 November 2019 was necessary for the Board to properly prepare its case for final hearing.

7. The fourth category of objection relates to the costs claimed by the Board for preparation of witness statements and the review of an affidavit filed by the respondent.  The Board prepared eleven witness statements between 30 March 2017 and 16 May 2017, and three statements (which included the briefing of an expert witness) between 12 July 2017 and 27 July 2017.  A further expert witness was briefed by the Board in November 2019.  The respondent contends that excessive time was spent on the preparation of the statements and that there is a lack of detail to support the time claimed for each witness.  Although the witnesses were not called to give evidence at the final hearing because the respondent chose not to participate, the Tribunal relied on the contents of their statements in making its findings against the respondent of professional misconduct in McCarthy.  Having regard to the length of the witness statements and the complexity of the affidavit sworn on 8 November 2019 (item 62 of the Bill of Costs), the Tribunal considers that the time claimed by the Board is not excessive.  Given the content of the witness statements and affidavit, the Tribunal is satisfied that the costs incurred by the Board for these items are reasonable.

Conclusion

1. The items claimed by the Board in its Bill of Costs are reasonable having regard to the nature, length and complexity of the proceeding, and the necessarily incurred disbursements.

2. Accordingly, the Tribunal will assess the legal fees incurred by the Board between 3 October 2016 and 30 March 2020 at $209,531.85 (inclusive of GST), and the Board's disbursements incurred between 28 October 2016 and 20 December 2019 at $21,193.23 (inclusive of GST).

Orders

The Tribunal orders:

1.The respondent is to pay the applicant's costs fixed in the sum of $230,725.08 (inclusive of GST).

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

MS C BARTON, MEMBER

5 NOVEMBER 2020