COSTS AGAINST DISCIPLINARY BODIES

The Australian Professional Liability Blog NZCA stomps on attempt to limit costs against disciplinary bodies Posted: 07 Sep 2014 05:11 PM PDT In Roberts v A Professional Committee of the Nursing Council of New Zealand [2014] NZCA 141 a nurse had pleaded guilty to having sex with a vulnerable patient. He had been suspended from nursing for three years. The High Court upheld his appeal and reduced his period of suspension to 18 months, precisely as he had requested. It dismissed the cross-appeal, which contended that he should have been deregistered. He sought costs. He got costs of the cross-appeal, fixed at 25% of the costs of the appeal because it had been doomed to fail and should never have been brought. But he failed in his claim for costs of his own appeal though he had obtained in it precisely what he had sought. Why? Because there were no ‘compelling reasons’ justifying such an order. The High Court noted that unlike disciplinary cases against lawyers, where first instance decision makers were empowered to make orders for and against the legal regulator, costs orders could be made only in favour of the nurses’ disciplinarian. The first-instance immunity to costs of nurses, and the important public function of the maintenance of standards in the provision of healthcare caused the High Court to carve out of quite a prescriptive costs regime in the High Court rules, one of the policies of which is apparently to make costs decisions predictable, a ‘compelling reasons’ threshold. So he did not get costs of his own appeal. He appealed again, on costs. The Court of Appeal allowed his appeal, and found there was no ‘compelling reasons’ threshold to be overcome before costs could be awarded against disciplinary regulators. The judges unanimously said: ‘[27] That is not to say we consider costs should always follow the event in these sorts of cases. We accept (as indeed did [the nurse's counsel]) that the fact professional conduct committees are performing a public function and have an immunity at Tribunal level may properly be taken into account in determining whether costs may be awarded and if so in what amount. [28] Given that the fact conduct committees are performing a public function will be a factor in every appeal, it might be thought that taking this into account will for all intents and purposes produce exactly the same result as that proposed by the Judge’s compelling reason threshold. Taking the public function into account will effectively mean that “something else” in addition to success may sometimes be required before costs can be awarded to a successful applicant. Ultimately, however, it is a question of degree or emphasis. [29] In our view, the correct and more principled approach is simply that the usual presumption still applies but, at the discretion of the Judge, the presumption may be more easily displaced than usual on account of the public function of professional conduct committees. A successful appellant is not, however, required to satisfy a “compelling reason” threshold. [30] That this is not just a matter of semantics is demonstrated by the facts of this case. Counsel agreed that if we rejected the “compelling reason” threshold, then rather than remit the matter back to the High Court for reconsideration, we should decide Mr Roberts’ costs application ourselves. [31] We have done so and have concluded that costs to Mr Roberts should have been awarded on both the appeal and cross-appeal. In our assessment, in the circumstances of this case, the fact the Conduct Committee was performing a public function was not a matter of any particular significance. The appeal was a fairly routine appeal in which the appellant succeeded and in fact obtained the precise reduction in sentence that he had sought in his notice of appeal.’ Cases on costs in disciplinary cases in NZ cited by the judgment include: Director of Proceedings v Medical Practitioners Disciplinary Tribunal [2003] NZAR 250 (HC). F v Medical Practitioners Disciplinary Tribunal [2005] 3 NZLR 774 (CA), esp at [88]; Shirley v Wairarapa District Health Board [2006] NZSC 63, [2006] 3 NZLR 523 at [16]–[17]; Patel v Complaints Assessment Committee HC Auckland CIV-2007-404-1818, 31 October 2007; MacDonald v Professional Conduct Committee HC Auckland CIV-2009-404-1516, 10 July 2009; ABC v Complaints Assessment Committee [2012] NZHC 1901, [2012] NZAR 856; and Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305 at [13].