Lim v Medical Council of New Zealand

[2016] NZHC 1275

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2016-485-124 [2016] NZHC 1275

IN THE MATTER

of an appeal against a decision of the

District Court

UNDER

Section 113 of the Health Practioners
Competence Assurance Act 2003

AND PURSUANT TO

Part 6 of the Criminal Procedure Act 2011

BETWEEN

DAVID KANG HUAT LIM Appellant

AND

MEDICAL COUNCIL OF NEW ZEALAND

Respondent

On the papers
Counsel:	AH Waalkens QC for Appellant D La Hood for Respondent
Judgment:	10 June 2016

COSTS JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 10 June 2016 at 4:30 pm

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Lim v Medical Council of New Zealand [2016] NZHC 1275 [10 June 2016]

Background

[1]      On 22 March 2016, I dismissed Dr Lim’s application for leave to appeal against a decision of the District Court.1   The District Court judgment had upheld the Medical Council of New Zealand’s interim suspension of Dr Lim’s practicing certificate following allegations that Dr Lim had indecently assaulted four of his patients.

[2]      I  reserved  my  decision  as  to  costs  and  invited  counsel  to  exchange memoranda.

[3]      As the successful party, the Medical Council now seeks orders of:

(a)      $6,740.89 for actual costs (as actual costs are less than 2B costs) and disbursements   in   relation   to   the   High   Court   applications,   in accordance with Part 14 of the High Court Rules; and

(b)$6,302.41 for costs on a 2B basis and disbursements in relation to the appeal in the District Court, in accordance with Part 14 of the District Court Rules 2014.

[4]      Dr Lim does not oppose the Medical Council’s application for those costs. He does, however, seek a “credit” for costs of $3,738.00, calculated on a 2B basis, in relation to a successful application for a stay of the interim suspension pending appeal,  which  was  granted  by the  District  Court  on  18  December  2015.2      The Medical Council does not believe Dr Lim is entitled to this credit.

Background

[5]      After  the  Medical  Council  suspended  Dr  Lim’s  practising  certificate  in

November 2015, Dr Lim applied to have the suspension stayed pending an appeal which was to be heard on 19 January 2016.

1      Lim v Medical Council of New Zealand [2016] NZHC 485, [2016] NZAR 447.

2      Lim v Medical Council of New Zealand [2015] NZDC 24944.

[6]      Judge Tuohy heard the application on 17 December 2015 and the next day he issued a judgment allowing the stay.   The decision records the Medical Council’s opposition as being based on its serious concerns about Dr Lim’s integrity and the safety of his wider clinical practice.  The Judge considered the primary element of Dr Lim’s submissions to be the effect that the suspension of his practising certificate would have on his employer and the 300 or so elderly people that he was currently treating, particularly given that the suspension was to take effect immediately before the Christmas holiday period.

[7]      The judgment outlined the competing interests in the parties’ submissions and

concluded by saying:

[30]     Weighing all matters, in particular the short time during which any stay will operate, the apparent effectiveness of the existing conditions in protecting the safety of patients, the availability of additional conditions and the potential effects on the availability of medical care to a large number of elderly patients, I consider the balance of convenience falls on the side of a stay of the interim suspension, but with the imposition of additional conditions.

[8]      The Judge did not make an order for costs in his decision.

The parties’ positions

Dr Lim

[9]      Dr Lim advanced the following arguments in support of his application for costs in relation to the stay application:

(a)      He was successful in his second stay application.

(b)A successful party in a proceeding is generally entitled to costs from the unsuccessful party.3

(c)       The principle that costs follow the event also applies to interlocutory proceedings.  This is because the merits of interlocutory applications

3      District Court Rules 2014, r 14.2(a).

are  often  different  from  the  overall  merits  of  the  substantive proceeding.4

(d)In  this  case,  Dr  Lim’s  application  for  a  stay  of  was  largely independent  from  the  overall  merits  of  his  appeal.     The  stay application was focussed on preserving the interim position, and the question of whether the stay should have been granted was not dependent on the overall outcome of the appeal.

The Medical Council

[10]     The Medical Council resists Dr Lim’s submission that it should pay costs for

the stay application on the following grounds:

(a)     Unlike general interlocutory applications, such as discovery or admissibility applications,  the merits  of Dr  Lim’s  stay application were linked to the merits of the substantive proceeding.  The matter is analogous  to  a  summary  judgment  application,  where  costs  are usually determined based on the outcome of the overall proceeding,

and should be treated accordingly.5

(b)The Councils success in the substantive hearing means Dr Lim should not receive costs for his stay application.

(c)       The Council was entirely reasonably in opposing the stay application. (d)     Judge Tuohy did not make a costs award in his decision.

(e)       The overall costs which the Medical Council seeks are more than

reasonable, given its overall success in the proceedings.

4      Chapman v Badon Ltd [2010] NZCA 613, (2014) 20 PRNZ 83 at [12].

5      See High Court Rules, r 14.8(3); EBS v CAS [2014] NZHC 2929 at [90].

Analysis

[11]     Although  costs  are  at  the  discretion  of  the  Court,  that  discretion  is  not unfettered.    It  is  a  general  principle  that  a  party  who  fails  with  respect  to  a proceeding, including an interlocutory application, should pay costs to the party who succeeds.6

[12]     I do not accept the Medical Council’s submission that the stay application is analogous to a summary judgment application; Dr Lim’s application was motivated by matters which were largely distinct from the issues in the substantive appeal. Although the Judge considered the Medical Council’s submissions that Dr Lim’s wider clinical practice may have been unsafe, the primary impetus behind the stay application and judgment was the real challenges that the suspension would cause to Dr Lim’s employer and his patients over the busy Christmas period, before his appeal could be heard.   These likely effects were not dependent on the overall outcome of his substantive appeal, which was concerned with administrative aspects of the Medical Council’s suspension decision.

[13]     This is not to say that the Medical Council was unreasonable in opposing the stay application.   It only became apparent at the stay application hearing that a fixture as early as January 2016 was available for the substantive appeal.  Had that fact been available to the Council sooner, it may well have changed their approach to the stay.

[14]     Given that the merits of Dr Lim’s stay application were distinct and not dependent on the issues in the substantive appeal, however, I see no compelling reason to depart from the general costs principles.  The Medical Council is entitled to

2B costs and disbursements totalling $6,302.41 of for the appeal in the District Court,  and  actual  costs  and  disbursements  totalling  $6,740.89  for  the  leave application in the High Court.  In the exercise of the Court’s general costs discretion, I consider Dr Lim is entitled to a credit for a notional award of 2B costs and

disbursements totalling $3,738.00 for his stay application in the District Court.

6      High Court Rules, rr 14.2(a) and r 14.8; District Court Rules, r 14.2(a) and r 14.8.   For all matters relevant to this costs decision, the principles in the District Court Rules 2014 are the same as those in the High Court Rules.

[15]     Once the entitlements are offset, the net result is that Dr Lim should pay the

Medical Council costs and disbursements of $9,305.30.  I so order.

………………………………..

Toogood J