Omant v Nursing and Midwifery Board of Australia (No 2)
[2014] VSC 552
•29 October 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2013 05871
| PETER WILLIAM OMANT | Plaintiff |
| v | |
| NURSING AND MIDWIFERY BOARD OF AUSTRALIA VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL | First Defendant Second Defendant |
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JUDGE: | RUSH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 October 2014 |
DATE OF JUDGMENT: | 29 October 2014 |
CASE MAY BE CITED AS: | Omant v Nursing and Midwifery Board of Australia & Anor (No 2) |
MEDIUM NEUTRAL CITATION: | [2014] VSC 552 |
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COSTS – Appeal from Victorian Civil and Administrative Tribunal – Whether first defendant should pay successful plaintiff’s costs – Costs consequences of an offer rejected by plaintiff – Whether nature and scope of offer was unclear – First defendant to pay plaintiff’s costs of and incidental to the proceeding on the usual basis – Whether first defendant entitled to indemnity certificate under s 4 of the Appeal Costs Act1998 (Vic) – Indemnity certificate granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P.J. Billings | Ryan Carlisle Thomas Lawyers |
| For the First Defendant | Dr I. Freckelton QC | Russell Kennedy Lawyers |
| For the Second Defendant | No appearance |
HIS HONOUR:
Introduction
In this matter the plaintiff, Mr Peter Omant, sought judicial review of the decision of the second defendant, the Victorian Civil and Administrative Tribunal (‘VCAT’), in which it found the plaintiff had engaged in professional misconduct and unprofessional conduct, and made a number of penalty determinations against the plaintiff.[1] The matter was initially referred to VCAT by the first defendant, the Nursing and Midwifery Board of Australia (the ‘Board’).
[1]A number of penalty determinations were made which imposed conditions and restrictions on the plaintiff’s ability to be employed as a Registered Nurse (Division 1).
On 13 October 2014, I delivered judgment in favour of the plaintiff and ordered the matter be remitted to VCAT for hearing de novo by a differently constituted tribunal.[2] I then heard from the parties on the question of costs, particularly why costs should not ordinarily follow the event.
[2]Such that both findings and penalty determinations be made afresh.
Dr I. Freckelton QC, counsel for the Board, submitted that any order as to costs against the Board should in effect terminate on 10 February 2014, when the Board made an offer to the plaintiff which offer Dr Freckelton submitted was in similar terms to the orders ultimately made by the Court on 13 October 2014. That offer was rejected by the plaintiff. In support of this submission, I was referred to the affidavit of Ms A. Courtney, solicitor for the Board.[3] Upon reading the affidavit, and after hearing brief oral submissions from the parties,[4] I adjourned the matter so that the plaintiff could file an affidavit in response to that of Ms Courtney, and so the parties could file written submissions on costs, particularly the costs consequences of the offer made on 10 February 2014.
[3]Affidavit of Anita Frances Courtney sworn 4 September 2014.
[4]Mr Comito, solicitor, made oral submissions on behalf of the plaintiff, because Mr P.J. Billings, counsel for the plaintiff, was unable to attend the handing down of judgment on 13 October 2014.
For the following reasons, I have determined that the Board pay the plaintiff’s costs of and incidental to the proceeding on the usual basis.
Background
The affidavits and written submissions received from both parties concerning the issue of costs set out a timeline of various steps and correspondence in the proceeding. The key items are summarised as follows:
(a) On 12 November 2013, the plaintiff filed an Originating Motion seeking orders quashing the findings of VCAT and directing VCAT to rehear and/or reconsider the allegations and/or penalty determinations before a differently constituted tribunal.
(b) On 4 February 2014, the solicitors for the plaintiff (‘RCT’) sent a letter to the solicitors for the first defendant (‘Russell Kennedy’) proposing consent orders which quashed the findings and penalty determinations made and directed VCAT to make a finding of professional misconduct and impose a reprimand, and that the Board pay the plaintiff’s costs of the Originating Motion and the costs of the proceedings at VCAT.
(c) On 7 February 2014, Russell Kennedy sent a letter to RCT in response which rejected the offer of 4 February 2014 and proposed that the matter be remitted to VCAT for a hearing on penalty determinations only, and that the parties bear their own costs.
(d) On 10 February 2014, RCT sent a letter to Russell Kennedy in response which rejected the offer of 7 February 2014 and sought again orders on the same terms as those proposed on 4 February 2014, together with the inclusion of specific penalty determinations. At this stage, the offer from RCT can be summarised as an order of this Court directing VCAT to make specified findings and penalty determinations in respect of the plaintiff.
(e) On 10 February 2014, Russell Kennedy sent a letter to RCT in response which stated that the Board reiterated its ‘previous position that it is not appropriate, in the particular circumstances of this case, for the Court to determine the findings and determinations’. The letter contained proposed consent orders by way of counter-offer which included that the ‘matter be remitted to the tribunal for rehearing by a freshly constituted tribunal as to the appropriate findings and determinations’, and that there be no order as to costs.
(f) On 11 February 2014, prior to a directions hearing the plaintiff rejected the Board’s offer of 10 February 2014.
(g) On 19 May 2014, the plaintiff filed written submissions which advanced three grounds in support of the relief sought in the Originating Motion.
(h) On 18 June 2014, the Board filed written submissions which contested the bias grounds of the plaintiff but accepted the procedural fairness ground. The Board submitted the matter should be remitted to VCAT differently constituted in relation to penalty determinations only.
(i) On 25 August 2014, Russell Kennedy sent a letter to RCT to ‘confirm’ the Board’s offer that the matter be remitted to VCAT differently constituted in relation to penalty determinations only.
(j) On 1 September 2014, RCT sent a letter to Russell Kennedy which offered to abandon the bias grounds if the procedural fairness ground was made out, and that the Board pay the plaintiff’s legal costs to date.
(k) On 4 September 2014, at the hearing of this matter the plaintiff confirmed its abandonment of the bias grounds and the Board accepted the procedural fairness ground was made out. The Board opposed the plaintiff’s submission that the matter should be remitted for a hearing de novo by a differently constituted tribunal.
The Board’s offer of 10 February 2014
The Board, in its written submissions as to costs, contends that costs from 10 February 2014 should be ordered in favour of the Board or, at least, costs from that time onwards should not be ordered in favour of the plaintiff. The Board contends the offer to resolve the matter contained in the letter would have, if accepted, resulted in a ‘re-hearing afresh’ or in orders relatively comparable to those ultimately made by the Court on 13 October 2014.
The Board further contends that the fact that its subsequent correspondence contained offers on less generous terms (i.e. the matter be remitted to VCAT on penalty determinations only) is irrelevant when considering the offer put to the plaintiff as at 10 February 2014.
Mr M. Comito, solicitor for the plaintiff, in his supplementary affidavit[5] submits that the nature and scope of the offer of 10 February 2014 was unclear. He states that his reading of the letter led to his firm belief the Board sought a re-hearing on penalty determinations only, not a re-hearing de novo. He also observes the Board offered no costs.
[5]Further Supplementary Affidavit of Mark Anthony Comito sworn 21 October 2014.
The Board’s initial position is best summarised in the following extract from the letter from Russell Kennedy of 7 February 2014:
…our client conceded that the determinations ought to be remitted for re-determination.
Our client does not, however, concede that there is any error in the findings made by the tribunal with respect to the conduct of your client.
In my opinion, the letter of 10 February 2014 does not change the Board’s initial position. The insertion of the words ‘appropriate findings’, that is ‘the matter be remitted to the tribunal for rehearing by a freshly constituted tribunal as to the appropriate findings and determinations’, does not amount to an offer of a re-hearing de novo. On my reading at best for the Board the offer amounts to the newly constituted tribunal using the evidence called at the initial hearing to reach its own findings and penalty determinations; another interpretation, giving context to the entirety of the letter, is that the offer is a repetition of that made on 7 February 2014.
My interpretation of the offer contained in the letter of 10 February 2014 is confirmed by the following words used by Russell Kennedy in their letter to RCT of 25 August 2014:
The purpose of this correspondence is to confirm our offer that the matter be remitted to the Victorian Civil and Administration (sic) Tribunal (‘the tribunal’) for a hearing on the issue of determinations by a differently constituted tribunal with each side to bear their own costs.
There is no evidence of any offer by the Board after that contained in the letter of 10 February 2014; the offer referred to in the letter of 25 August 2014 is the offer of 10 February 2014, that is Russell Kennedy is describing that offer as a remitter on the issue of penalty determinations only.
Mr Comito contends that the letter of 10 February 2014, when read as a whole, ‘did not state a clear position that the [Board] either changed its earlier position or sought a hearing de novo at [VCAT] regarding findings and determinations’. Further, he contends the words ‘appropriate findings’ are not enough to express a changed position. I agree that the Board’s letter could be interpreted in such a way.
In my opinion, the offer of the Board of 10 February 2014 cannot be construed as amounting to an offer of a hearing ‘afresh’ or de novo. The offer is unclear[6] such that reasonable doubt existed as to the scope and effect of the offer actually intended to be made. It is understood that the desirability of encouraging parties to settle litigation makes it undesirable for offers such as that of 10 February 2014 to be burdened with technicality.[7] However, the terms of the offer must be clear, coherent and able to be understood. In my opinion, the letter of 10 February 2014 failed to meet such criteria.
[6]See Jeffrey-Potts v Garel (Costs Ruling) [2012] VSC 367 at [28] (J. Forrest J).
[7]See (in the context of informal offers attracting Calderbank principles) BMD Major Projects Pty Ltd v Victorian Urban Development Authority (No 2) [2007] VSC 441 at [5] (Pagone J).
Indemnity certificate
The Board has applied for an indemnity certificate under s 4 of the Appeal Costs Act 1998 (Vic) (‘Appeal Act’). Section 4 states:
If an appeal against a decision of a court in a civil proceeding—
(a) to the Trial Division of the Supreme Court; or
(b)to the Court of Appeal, including an appeal to the Court of Appeal from a decision of the Trial Division of the Supreme Court; or
(c)to the High Court of Australia from a decision of the Supreme Court—
succeeds, a respondent to that appeal may apply to the Supreme Court for, and the court may grant, an indemnity certificate in respect of costs.
Section 3 of the Appeal Act defines ‘appeal’ and ‘court’ as:
appeal includes an appeal by way of re-hearing, an application for a new trial and any proceeding in the nature of an appeal, but does not include a case stated.
court includes any tribunal or other body—
(a)from whose decision there is an appeal to a superior court on a question of law; or
(b)which may state a case for the opinion or determination of a superior court on a question of law or reserve any question of law in the form of a special case for the opinion of a superior court.
It is well understood that for the purposes of an application under s 4 of the Appeal Act, an application made pursuant to O 56 of the Supreme Court (General Civil Procedure) Rules 2005 is deemed to be a ‘proceeding in the nature of an appeal’ pursuant to the definition of an appeal in s 3 of the Appeal Act.[8] Further, VCAT is by definition a ‘court’ to which the section applies.[9]
[8]Dawson v Bethonga Wholesale Foods Ltd [2009] VSC 172 at [20] – [22] (Cavanough J).
[9]See also Applebee v Monash City Council (No 3) [2014] VSC 299; Walia v Staycool Heating & Air Conditioning [2010] VSC 565; Paul & Paul Pty Ltd v Business Licensing Authority (No 2) [2010] VSC 500.
I am satisfied that it is appropriate in all the circumstances[10] that a certificate should be granted to the Board.
[10]Eureka Funds Management Limited & Anor v Freehills Services Pty Ltd (No 2) [2008] VSCA 177 at [7] (Cavanough AJA).
The Board, in its written submissions, also contends that any costs order made against it should be discounted by the fact that it had to respond and meet the bias grounds asserted by the plaintiff in its Originating Motion and written submissions, which were ultimately dropped effectively at the last minute by way of correspondence on 1 September 2014. I do not consider such discount should be afforded to the Board. I do not consider it in the interests of the efficient administration of justice to penalise an ultimately successful litigant for abandoning a ground of argument prior to or during a hearing.
Orders
My final orders in this matter are as follows:
(a) the decision of VCAT be quashed and the matter be remitted for hearing de novo by a differently constituted tribunal;
(b) the Board pay the plaintiff’s costs of and incidental to the proceeding, on the usual basis; and
(c) an indemnity certificate be granted to the Board in respect of costs pursuant to s 4 of the Appeal Costs Act1998 (Vic).
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