Medical Board of South Australia v Wong (No 2) No. Dcaat-96-16 Judgment No. D3540

[1996] SADC 3540

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Decision of His Honour the Chief Judge, Member Last, Member Pickering and Member Fullgrabe

Hearing

05/08/96, 21/10/96, 25/11/96, 27/11/96.

Catchwords

Complaint of unprofessional conduct - complaint dismissed. Application by respondent for an order that the complainant pay the respondent's costs. Tribunal's jurisdiction is governed by the principles of the civil law - scale of costs should be similar to that applying to the civil jurisdiction in the District Court.

Materials Considered

• Medical Practitioners Act 1983s64, referred to.
• Latoudis v Casey (1990) 170 CLR 534;
• R v Justices of South Brisbane (1901) 18 QLJ 81;
• Heinrich v Medical Board of South Australia (Full Court, 11 December 1996, S5899, unreported), applied.

Representation

Complainant MEDICAL BOARD OF SOUTH AUSTRALIA:
Counsel: MR P WILSON - Solicitors: CROWN SOLICITOR

Respondent MARK KAM CHEUN WONG:
Counsel: MS M TUCCIA - Solicitors: FISHER JEFFRIES

DCAAT-96-16

Judgment No. D3540

19 December 1996

(Medical Practitioners Professional Conduct Tribunal)

MEDICAL BOARD OF SOUTH AUSTRALIA v WONG

Medical Practitioners Professional Conduct Tribunal

The Chief Judge, Members Last, Pickering & Fullgrabe

By complaint dated 21 December 1995 and received at the office of the Tribunal on 8 January 1996, the complainant alleged that the respondent had been guilty of unprofessional conduct.The hearing of the complaint extended over three full days,4, 5 and 6 March 1996.At the conclusion of the hearing, the Tribunal reserved its decision.

That decision was announced on 12 April 1996.The Tribunal published written reasons for dismissing the complaint.

Counsel for the respondent thereupon made application for an order that the complainant pay the respondent's costs of the proceedings.Counsel for the complainant did not oppose the making of an order, but the parties had not, at that stage, considered the amount that should be ordered to be paid.The Tribunal adjourned the hearing to 5 August 1996 in the hope that the parties would agree the amount to be awarded by way of costs in the interim.

That hope proved to be forlorn.When the hearing was resumed on 5 August 1996 counsel for the respondent advised the Tribunal, in the absence of counsel for the complainant, that agreement had not been reached and that it seemed likely that the respondent's solicitors would have to prepare a more detailed statement of the costs involved than had been attempted at that stage.

The Tribunal was not able to re-convene until 21 October 1996.On this occasion the complainant was represented, but the respondent was not.Still, there had been no agreement reached between the parties.

The Tribunal next sat with respect to this matter on 25 November 1996.A further adjournment was sought by counsel then appearing for the respondent upon the ground that the respondent's solicitors had been unable to obtain firm instructions from the respondent on the outstanding matter of costs.The further adjournment was opposed by counsel for the Board, but the Tribunal decided to grant one last, short, adjournment to the respondent.

The matter finally came before the Tribunal on 27 November 1996, by which time the respondent's solicitors had produced to the Tribunal and to the Board's solicitors, a skeleton bill of costs.The total of costs and disbursements indicated by this document was $14,327.75.

Counsel for the Board argued that the respondent's costs should be allowed in the range of $2,100 - $2,500.He argued that a case dismissed in the summary jurisdiction of the Magistrates Court would attract an order for costs of such a magnitude and that that should form a suitable guide for the award to be made in this case.Counsel for the respondent argued that such an award would be quite inadequate.She suggested a very wide range from $5,000 - $14,327.75 as being appropriate.

Of course, "Costs are entirely the creation of statute.There is no common law jurisdiction in Tribunals to grant costs."See R v Justices of South Brisbane (1901) 18 QLJ 81.

The Tribunal's power to award costs is to be found in section 64 of the Medical Practitioners Act 1983.Subsection (1) of that section provides:-

"The Tribunal may make such orders as to costs against a party to proceedings before it as the Tribunal considers just and reasonable."

In Latoudis v Casey (1990) 170 CLR 534, the High Court considered section 97(b) of the Magistrates (Summary Proceedings) Act 1975 of the State of Victoria.That section authorised the Court, when it dismissed an Information, to order the informant to pay to the defendant such costs as it thought just and reasonable.The case was thus concerned directly with the exercise of this power by the Magistrates Court in Victoria.The consideration of the power, however, proceeded on a matter of broad principle.Mason CJ said (at pp 543-544):-

"I am not persuaded that there is a complete analogy between the discretion to award costs in summary proceedings and the power to award costs in civil proceedings.For that reason I would not be prepared to accept that in summary proceedings there should be a general rule that costs follow the event.As I have noted, the making of separate provision in s.97(a) and (b) is not without significance.The differences between criminal and civil proceedings are substantial, not least of them being the absence of pleadings, the different onus of proof, the defendant's inability in criminal proceedings to enter into a compromise and the possibility that the charge, if proved, may affect the defendant's livelihood and reputation.These differences may possibly provide grounds in the circumstances of particular cases for refusing to order costs in favour of a successful informant which would have no application in civil proceedings.

Nevertheless, I am persuaded that, in ordinary circumstances, an order for costs should be made in favour of a successful defendant.However, there will be cases in which, when regard is had to the particular circumstances, it would not be just and reasonable to order costs against the prosecutor or to order payment of all the defendant's costs.If, for example, the defendant, by his or her conduct after the events constituting the commission of the alleged offence, brought the prosecution upon himself or herself, then it would not be just and reasonable to award costs against the prosecutor."

Toohey J said (at pp 564-565):-

"... The relevant statutory provision, in the present case s.97(a) and (b) of the Magistrates (Summary Proceedings) Act, confers the discretion;the task for the magistrate is to exercise it.And the discretion may be exercised in favour of a successful defendant or against a successful defendant;but the court must not simply apply an inflexible rule.

If a prosecution has failed, it would ordinarily be just and reasonable to award the defendant costs, because the defendant has incurred expense, perhaps very considerable expense, in defending the charge.What Kirby P. said in Acuthan v Coates (1986) 6 NSWLR 472, at p480 of defendants to committal proceedings is apposite:

'The section recognises that persons accused of criminal offences can be put to a great deal of expense in defending themselves.Unlike civil litigation, they cannot simply compromise the matter.Their liberty, reputation and pocket are, or may be, at risk.'

It is unnecessary to speak in terms of a presumption;it is enough to say that ordinarily it would be just and reasonable that the defendant against whom a prosecution has failed should not be out of pocket.

Now, in a particular case there may be good reasons connected with the prosecution such that it would not be unjust or unreasonable that the successful defendant should bear his or her own costs or, at any rate,a proportion of them. ."

McHugh J said (at pp 567-568):-

"Once it is perceived that costs operate as an indemnity and that the rationale of making a costs order is that it is just and reasonable that the successful party should be reimbursed for the costs incurred in bringing or defending the action, no ground exists for distinguishing between informants in summary proceedings who are public officials and those who are private persons.True it is that public officials should launch prosecutions only when the public interest requires it.This is the chief, but not the only, rationale for the rule that historically the Crown neither paid nor received costs.This rule also applied to a public official who instituted proceedings in his own name but really on behalf of the Crown;Reg v Beadle (1857) 7 El & Bl 492 [119 ER 1329].The purpose of enacting statutory provisions such as s97 of the Magistrates (Summary Proceedings) Act 1975 (Vict) ('the Act'), however, is to reverse the historic rule:Acuthan v Coates (1986) 6 NSWLR 472, at p480, per Kirby P.Once a legislature abolishes the rule that the Crown and those who institute summary proceedings in the public interest neither pay nor receive costs, the various rationales of that rule cannot be used to justify the exercise of the discretion to refuse to order the payment of costs of a successful defendant in summary proceedings.To use them in that manner is to ignore the purpose of the legislature in enacting the legislation.Moreover, as the decisions on costs in summary proceedings in Queensland and Victoria demonstrate, if the rationales of the historic rule are taken into account in the exercise of the discretion to award costs, they result in practice in the continuance of the position which existed before the legislation, at least so far as informants not being liable for costs are concerned.In the rare cases in those States where a costs order is made against a police officer-informant, the real basis of the order is punishment of the police officer:he or she is ordered to pay costs because his or her conduct has fallen below what is expected of a police officer-informant.Paradoxically, the rationales of the historic rule are not used to defeat the exercise of the discretion in favour of the Crown or police informant when the informant seeks an order for costs. The result is unequal justice.

It follows that I am of the opinion that the South Australian Supreme Court in Hamdorf v Riddle [1971] SASR 398 was correct in its general approach to the payment of costs in summary proceedings.

In civil proceedings, the relevant statute or rule often provides that costs follow the event unless the court thinks that some other order should be made. But even when the discretion is uncontrolled, civil courts act on the basis that a successful party has a reasonable expectation of obtaining an order for costs and that the discretion to refuse to award costs should not be exercised against the successful party except for a reason connected with the case. Thus, if a plaintiff sues on two causes of action and succeeds on one, he or she will obtain the general costs of the action and the costs of the cause of action on which he or she succeeded, but the defendant will receive the costs of the cause of action on which he or she was successful:Greeves v Freshwater
(1938) 55 WN (NSW) 113."

Mason CJ, Toohey and McHugh JJ constituted the majority in this case, Dawson J, with whom Brennan J agreed, was not prepared to go so far as to say that the successful party in the Magistrates Court should have an expectation of an award of costs.

In the present case, we are not, of course, considering a criminal charge. The jurisdiction of the Tribunal is governed by the principles of the civil law and it is the civil onus of proof which applies:Heinrich v Medical Board of South Australia (Full Court, 11 December 1996, S5899, unreported).

The award of costs, as Latoudis v Casey (supra) demonstrates, is to be in the nature of an indemnity, although that indemnity will no doubt be established on a party and party basis rather than on a solicitor and client basis.The charge here was of a serious nature which, if established, could have affected the respondent's right to practise medicine.In Robertson v Commissioner of Stamp Duties (1906) 3 CLR 829, the High Court decided that if a party is to recover costs in proceedings, such as the present case, as to which no scale of costs is provided, that party is entitled to costs on the Supreme Court scale analogous to the proceedings in issue.Although the difference would not be great, it might be anticipated that the court of today might, in present circumstances, refer to the District Court scale, bearing in mind the level of the judiciary called upon to preside over the Tribunal.

Having regard to the considerations that we have mentioned, we disagree with counsel for the applicant as to the scale of costs to be applied in the present case.We think that the scale to be considered, in general terms, is the scale applying to the civil jurisdiction in the District Court.We think, however, that the amounts for both solicitor's costs and counsel fees suggested by counsel now appearing for the respondent are high when compared with that scale.It is to be remembered that there were no pleadings other than the complaint of two pages to be considered, drafted or settled.There were no questions relating to particulars, discovery or interrogation.The counsel fees suggested are higher, generally, than would be allowed in the District Court, although they may well have been justified on a solicitor and client basis.The case was not one, however, of great difficulty or complexity.

Taking everything into account as best we can, we consider that the respondent's costs on a party and party basis should be assessed at about $8,500.

Counsel for the applicant contended that the respondent should pay the applicant's costs of the various adjournments of the hearing caused by the respondent's delays in formulating his claim for costs.We note that counsel for the applicant attended on three occasions prepared to debate the issue.

In all of the circumstances of the case, we think it appropriate to allow the applicant credit to the extent of the sum of $500 in respect of the costs thrown away by virtue of the respondent's delays.

In the result, our order will be that the applicant pay to the respondent the sum of $8,000 by way of costs in respect of these proceedings.