Moore v The Registrar of the Medical Board (No 2)

Pam Moore v The Registrar of the Medical Board (No. 2)
[2001] SADC 141
Civil
Judge David Smith
Introduction

In this matter the appellant successfully appealed to this Court pursuant to s40 of the Freedom of Information Act, 1991 (“FOI Act”), against a determination by the Registrar of the Medical Board of South Australia (“the Board”), made on the 17^th January 2001, whereby the Registrar refused the appellant access to the transcript of a hearing of the Board on the 3^rd December 1996. The hearing concerned, inter alia, matters which arose from a complaint by the appellant.
For reasons which are set out in Moore v The Registrar of the Medical Board of South Australia [2001] SADC 106, I found that there were “cogent reasons” for departing from the decision of the Registrar, and pursuant to s42F of the District Court Act, 1991 I rescinded the determination of the Registrar made on the 17^th January 2001, and substituted a determination that the appellant be given access to the transcript, but only insofar as the transcript records the proceedings relevant to the appellant’s complaints.
Costs Application and arguments
The appellant sought costs pursuant to s42G of the District Court Act. The application was opposed. The appellant contended that as she had succeeded, it was in the interests of justice that the respondent pay her costs, which she claimed as $1,825.70. On the other hand, counsel for the respondent, Ms Cattonar, submitted that in the ordinary case, costs will not follow the event, but rather, on the correct construction of the section, costs would be ordered only in a special or exceptional case. She added that this case was not such a case.
Because there is no authority on the construction of the cost provision and its mirror image s42H, I set out my conclusions hereunder.
Interpretation of section 42G of the District Court Act
Section 42G 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.”
Section 42G was part of District Court (Administrative and Disciplinary Division) Amendment Act, 2000 which was assented to on the 20^th April 2000 and came into operation on the 1^st day of June 2000. The previous cost provision, namely s40(2)(b) of the FOI Act which was repealed by the above amendment, provided as follows:-
“On such an appeal the Court made –
(b)make such further or other orders, (including orders for costs) as the justice of the case may require.”
That provision was repealed to make way for s42G. A comparison of the language of the repealed s40(2)(b) of the FOI Act and s42G(2) of the District Court Act reveals that Parliament must have intended by s42G to limit the discretion or narrow the scope of cases in which the District Court could, in its Administrative and Disciplinary Division, award costs. Section 40(2) of the FOI Act gave the Court a typical open statutory discretion to order costs “as the justice of the case may require”. On the other hand, the replacing provision, namely s42G of the District Court Act, fetters the discretion. On its face, s42G denies costs even to the successful contestant unless he or she can point to some consideration or circumstance which demonstrates that an order is “necessary in the interests of justice”.
Some guidance to the proper construction of s42G arises from a consideration of the language of the costs provisions of both the Supreme Court and the District Court.
Section 40 of the Supreme Court Act 1935 provides as follows:-
“40 (1) Subject to the express provisions of this Act, and to the rules of court, and to the express provisions of any other Act whenever passed, the costs of and incidental to all proceedings in the court, including the administration of estates and trusts, shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and to what extent such costs are to be paid.
(2) If –
(a)an action for the recovery of damages or any other monetary sum is brought in the court;
(b)the action might have been brought in the District Court; and
(c)the plaintiff recovers less than an amount fixed by the rules for the purposes of this paragraph,
no order for costs will be made in favour of the plaintiff unless the Court is of the opinion that it is just, in the circumstances of the case, that the plaintiff should recover the whole or part of the costs of action.”
Section 42 of the District Court Act 1991 provides:-
“42(1) Subject to subsection (2) and the rules, costs in any civil proceedings will be in the discretion of the Court and may be awarded against any person (whether a party to or a witness in the proceedings or not).
(2) If –
(a)an action for the recovery of damages or any other monetary sum is brought in the Court;
(b)the action might have been brought in the Magistrates Court; and
(c)the plaintiff recovers less than an amount fixed by the rules for the purposes of this paragraph,
no order for costs will be made in favour of the plaintiff unless the Court is of the opinion that it is just in the circumstances of the case that the plaintiff should recover the whole or part of the costs of action.”
It can be seen that the language of s42G has not followed s40(1) of the Supreme Court Act and s42(1) of the District Court Act, both of which provisions give each court the open and unfettered discretion in relation to costs which is invariably exercised in favour of the successful contestant; (see Cretazzo v Lombardi (1975) 13 SASR 4 per Bray Cj at 12). Rather, s42G has followed the language of s40(2) of the Supreme Court Act and s42(2) of the District Court Act both of which, as a starting place, deny entitlement to costs to any plaintiff who, although succeeding, fails to prosecute his or her claim in the appropriate court “unless the court is of the opinion that it is just, in the circumstances of the case, that the plaintiff should recover the whole or part of the costs of the action”. It is clear from an examination of the cases which have interpreted s40(2) of Supreme Court Act and s42(2) of the District Court Act, that some exceptional circumstances must exist before costs will be ordered in favour of a plaintiff who, though successful, falls foul of the provisions; (see Civil Procedure South Australia, Lunn at 4411 and 10,718).
So success alone will not make “it necessary in the interests of justice” that a favourable order for costs follow.
There is no provision in the Acts Interpretation Act (SA), 1915 which enables courts in South Australia to use, for instance, Parliamentary Debates and, in particular, a Minister’s Second Reading Speech, as an aid to interpreting legislation. The position now is that, despite the absence of a statutory imprimatur, it is permissible at common law for a court to refer to a Second Reading Speech to ascertain the mischief and discover the underlying purpose of the legislation; (see Owen v SA (1996) 66 SASR 251 per Cox J at 255-6; MSP Nominees Pty Ltd v Commissioner of Stamps (1999) 166 ALR 149 at 155-6 per Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ; Statutory Interpretation in Australia, 5^th Edition Pearce and Geddes at para 3.5). At p256, Cox J in Owens said:-
“Obviously the intention of Parliament will frequently be to remedy a mischief, so that an express statement of intention in a second reading speech may well, without more, be a reliable indicator of the mischief to be cured or, to put it another way, the purpose to be served. A second reading speech will not necessarily be irrelevant, then, simply because it is couched in terms of intention.”
(the italics are mine)
So the exercise here is to identify the purpose to be served by this formula of words as employed in s42G and for that matter s42H. In respect of the Bill for the District Court (Administrative and Disciplinary Division) Amendment Act, 2000, the Minister gave an explanation of the various clauses and in respect of the cost provisions he said:-
“In addition to its main purpose, the Bill also makes minor technical amendments to the Act. For the avoidance of doubt, it makes clear that proceedings in the Administrative and Disciplinary Division, and in the Criminal Injuries Compensation Division, are civil proceedings and, in particular, that the Court has a power to award costs in disciplinary proceedings. This undoes the effect of a recent decision holding that the Court has no such power in disciplinary proceedings. However, costs in disciplinary proceedings, like those in administrative appeals, are only to be awarded where the interests of justice so require. They do not simply follow the event.
………………….
42G. Costs and ancillary orders, etc., on appeals
The ADD may make any ancillary or consequential order that the ADD considers appropriate, except that no order for costs is to be made unless the ADD considers it to be necessary in the interests of justice.
SUBDIVISION 3 – DISCIPLINARY PROCEEDINGS
42H. Costs and ancillary orders, etc., in disciplinary proceedings
This clause mirrors new section 42G except that it applies in relation to disciplinary proceedings before the ADD.”
So it can be seen that there is an express indication that the purpose of the cost provisions ss42G and 42H, is to deny costs even to a successful contestant unless there are considerations present which made such an order “necessary in the interest of justice”.
Conclusion
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 interest 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.
It is not possible to specify what additional matters would assure a favourable exercise of the discretion. However, to offer some guide, it is my view that much the same considerations which have been held to be relevant in the cases dealing with when costs will be ordered on a solicitor/client, indemnity or some other special basis, would be applicable here. There must be some special or unusual features; (see Colgate-Palmolive Co Pty Ltd v Cussons Pty Ltd (1993) 46 FCR 225; Casley-Smith v FS Evans & Sons Pty Ltd (No. 6) (1989) 148 LSJS 483). Examples of the circumstances which have provoked such orders are set out at length in Civil Procedure South Australia, Lunn Volume 1 at 10,702, 10,703. For instance, such costs may be awarded where a party unreasonably proceeds when he ought to have known there was no prospect of success; (see Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397).
Exercise of discretion embodied in s42G in this case
In my view, it is necessary in the interests of justice that the appellant have her costs of the appeal. There are a number of compelling and unusual features which raise her claim to entitlement above the usual case. I refer to the “background circumstances” as particularised at pages 1-3 of the primary judgment and also the “cogent reasons” set out at pages 13-15 of the judgment. I list some of the compelling considerations here below:-
·The appellant had compelling standing as an FOI applicant. As a mistreated patient she had a close personal interest in her application and public interest demanded that she have access to, at least that part of the transcript of the hearing which related to her treatment by the medical practitioner;
·She was originally intending to prosecute the complaint herself but was deflected from doing so – albeit not improperly – by an officer of the Crown who warned her that failure could result in an adverse costs order. Were she to have prosecuted the complaint, there could have been no denying her access to the transcript;
·Her complaint and instructions provided the necessary impetus for an investigation hearing and disciplinary action against a medical practitioner who admitted neglect. As such this was clearly in the public interest;
·The plaintiff’s complaint against the medical practitioner included that operation notes made by him in the medical record at the QEH were inaccurate, inadequate and misleading. The practitioner acknowledged that. In that respect, the Board found him guilty of unprofessional conduct. The plaintiff has had to undergo further medical treatment and was entitled to know what passed in the hearing as to her records, so as to ensure that her records, relevant as they were to her ongoing treatment, were full, complete and accurate; and
·The plaintiff at all material times demanded no more than access to that part of the transcript which related to her complaint against the practitioner.
For those reasons, I consider that the interests of justice demand that the appellant have her costs. Accordingly, I order that the Registrar of the Medical Board of South Australia pay to the appellant costs of and incidental to this appeal, which I fix at $1,825.70.

[2001] SADC 141

1 November 2001