Federal Court of Australia

Souraki Azad v Mithila Family Trust t/as Rockingham GP (No 2) [2023] FCA 693

ORDERS

THE COURT ORDERS THAT:

1.    The first applicant do pay the costs of the Australian Health Practitioners Regulation Agency of and incidental to these proceedings, such costs to be assessed by a registrar if not agreed on the basis that the assessed costs shall not exceed the amount of $2,750 (inclusive of GST).

2.    There be no order as to the costs of the first to third respondents that were of and incidental to the application heard on 1 May 2023.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLVIN J:

1    On 1 May 2023, I heard an urgent application brought by Dr Darius Souraki Azad and his wife Dr Marjan Norouzi. Dr Azad had been working as a general practitioner in a medical practice in Rockingham (Medical Practice). His wife was completing the approval process to be able to commence medical practice in Australia. She claimed to have made an arrangement to also commence work at the Medical Practice. The urgent application adopted the form of an application that was to be used where the circumstances justified an application for an injunction before starting proceedings. It identified the following prospective respondents: the trust which was said to be conducting the Medical Practice (the Mithila Family Trust) as the proposed first respondent, the two doctors who were said to be the owners and directors of the Medical Practice as the second and third respondents and what was apparently intended to be the Australian Health Practitioners Regulation Agency (AHPRA) as the fourth respondent.

2    In substance, the relief sought was for an injunction that would allow Dr Azad to continue delivering care to patients. It was sought against the proposed first, second and third respondents. He also sought an injunction against AHPRA to prevent it from continuing to investigate what he claimed to be groundless allegations made against him. No injunctive relief was sought by Dr Norouzi although it appeared to be intended that the substantive claims would include claims to be advanced by her against the proposed first, second and third respondents.

3    Although the form of application contemplated that the applicants would proceed ex parte, the application was served on each of the prospective respondents. At the urgent hearing, Dr Azad appeared in person on his own behalf. Dr Norouzi appeared by video link on her own behalf. Each of the proposed respondents appeared by counsel. In addition, shortly prior to the hearing, the prospective fourth respondent filed written submissions alleging want of jurisdiction, alternatively that the balance of convenience did not favour the grant of injunctive relief. It was also claimed that there was no foundation for the orders sought against the proposed fourth respondent.

4    At the hearing, the nature of the process was explained to Dr Azad, particularly the expectation that it would be used in cases of considerable urgency where it was appropriate to proceed without notice to the other parties. Further, it was on the basis that relief of that kind had been sought that the matter had been listed at short notice. Therefore, he needed to demonstrate urgency of that kind in order to be able to proceed. The significance of the availability of a procedure by which he may raise concerns with the regulator of the medical profession as part of the process being conducted by the regulator was also explained. He accepted that explanation and indicated that he did wish to proceed against the proposed fourth respondent.

5    As to the other proposed respondents he made a short oral submission to support the injunctive relief that he sought. He expressed concern for his patients in circumstances where his agreement to work at the Medical Practice (which he described as a consultancy agreement) had been terminated. He was especially concerned that he was unable to assist patients who he had been treating for mental health issues.

6    I concluded that it had not been established that orders should be made on an urgent basis and made directions as to the further conduct of the proceedings: Souraki Azad v Mithila Family Trust t/as Rockingham GP [2023] FCA 404. Those directions regularised the proceedings. As against the first, second and third respondents a timetable was set for the filing of a concise statement outlining the basis for the claim and for the hearing of any interlocutory application for injunctive relief. The application as against the fourth respondent was dismissed.

7    On that occasion, each of the respondents sought orders as to costs. I gave an opportunity for the applicants to file short written submissions in opposition to the cost orders sought and for the respondents to file submissions in reply. I indicated that the question of costs would be determined on the papers.

8    In the result, after further consideration, Dr Azad informed the Court that he did not wish to proceed with the application for an interlocutory injunction. Nevertheless, the proceedings remain on foot as against the first, second and third respondents.

General principles

9    The award of costs is discretionary: s 43 of the Federal Court of Australia Act 1976 (Cth). The discretion is unconfined, but must be exercised judicially, that is according to relevant considerations and taking account of the contextual features and facts of the litigation: Kazar (Liquidator) v Kargarian; In the matter of Frontier Architects Pty Ltd (In Liq) [2011] FCAFC 136; (2011) 197 FCR 113 at [4]. Settled principle guides the exercise of the discretion which is to be exercised judicially: Oshlack v Richmond River Council (1998) 193 CLR 72 at [65] (McHugh J, Brennan CJ agreeing), [134] (Kirby J).

10    Usually, the costs of an interlocutory application for injunctive relief are ordered to be costs in the cause unless the application is shown to have been brought or opposed unreasonably: Perdaman Chemicals and Fertilisers Pty Ltd v Griffin Coal Mining Company Pty Ltd [No 3] [2011] WASCA 203 (S) at [11]; applying O'Keefe Nominees Pty Ltd v BP Australia Ltd (No 2) [1995] FCA 109; (1995) 55 FCR 591.

11    An indemnity cost order may be made where there is 'relevant delinquency on the part of the unsuccessful party': Oshlack v Richmond River Council at [44]. Such orders are not made to punish but to more fully compensate the successful party having regard to the some special or unusual feature of the conduct by the unsuccessful party that justifies the order.

Relevant circumstances in the present case

12    Dr Norouzi did not seek any interlocutory relief at the hearing. There is no basis for a cost order against Dr Norouzi.

13    In the present case, the substance of the application for an interlocutory application was not finally determined. Rather, as to AHPRA, it was not pressed when the procedural steps, particularly the significance of engaging with the process with the regulator, were explained to Dr Azad. As to the first to third respondents, the application for injunctive relief was unsuccessful on the basis that the relief should not be granted on the extremely urgent basis upon which it was sought. Instead, directions were made to enable the application to be pursued on notice and after details of the basis for the claim had been provided in the form of a concise statement. In the result, the applicants did not seek to proceed with the interlocutory application. It appears that the decision not to proceed has been influenced by the fact that Dr Azad has been suspended from practice and he is focussing his efforts on dealing with the regulatory process.

14    The application was commenced by the applicants without the benefit of legal advice. It included the following endorsement below the heading 'As part of the main application, which would be a General Protections Claim brought under sections 372, 545 and 539 of FWA - direct to court application)'. Plainly, from the form of the application, the intention of the applicants was to bring a claim under the Fair Work Act 2009 (Cth) in terms they considered appropriate. The affidavit of Dr Azad in support of the application had the same endorsement. The contents of the affidavit began as follows:

I, Dr Darius Souraki Azad … the first Applicant in this Affidavit, which has been prepared in support of an urgent application before start of a proceeding, requesting Urgent Orders Restraining the Respondents from their contraventions (Under Rule 7.01 of the Federal Court Rules), while the the main application will be a General Protections Claim brought under sections 372, 545 and 539 of FWA (direct to court application), declare that …

15    The contents of the affidavit began by referring to the dealings as between Dr Azad and Dr Norouzi on the one hand and the Medical Practice on the other. It set out the circumstances of a dispute as to whether they would be allowed to work at the practice. The affidavit was very discursive. To a legally trained eye it was plain that contained an unduly detailed account that was not arranged by reference to any recognised form of legal claim. Further, the matters outlined in the affidavit had been ongoing for some time and, in some respects, had already been before the Supreme Court of Western Australia. In addition, the relief that was sought was not formulated in usual terms and invited the Court to require the Medical Practice to engage Dr Azad to provide care to patients of the practice in circumstances where AHPRA appeared to be conducting an investigation.

16    In those circumstances, it was plainly evident that it was unlikely in the extreme that Dr Azad would obtain urgent relief in the terms sought or any terms based upon the terms of the application and the affidavit. It was, of course, appropriate for the prospective respondents, having been served with the application, to secure legal representation. However, the steps that might reasonably be taken by such legal representatives to answer the application required due account of three significant aspects.

17    Firstly, the terms in which the application had been expressed, including the manifest intention that the claim be advanced as a claim under the Fair Work Act being a jurisdiction in respect of which it ought to have been well known to any lawyer that costs would only be awarded against an applicant in circumstances where the proceedings had been instituted vexatiously or without reasonable cause or there has been an unreasonable act or omission.

18    Secondly, the applicant were litigants acting on their own behalf. All practitioners must be assumed to be aware of the Court's duties when it comes to explanation of the relevant procedure: as to which, see the recent review of the authorities by Feutrill J in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384. Therefore, parties must expect that the Court will take steps to provide such explanations and are unlikely to impose cost orders without first explaining relevant aspects of procedure. Indeed, it may be expected that practitioners will seek to explain relevant aspects of the court procedure to litigants acting on their own behalf.

19    Thirdly, the prospective respondents, though served, were not parties to the proceedings.

20    The cost orders that may be appropriate need to be considered in the above context.

Application for costs by AHPRA

21    The orders that were sought against AHPRA as a proposed respondent were expressed in the following terms:

To restrain [AHPRA], to continue with its illegal retaliatory actions against the first applicant, due to his several criticism of the fourth respondent, because of numerous obvious serious misconducts and corrupt acts of some of its officers over the past 3 years in relation to the various matters, impacting the first applicant and his patients, including the comprehensive complaint that the first respondents lodged on 25/10/2021, to the offices of then Federal Attorney General, State Attorney General, then State & Federal Health Ministers, as well as the Federal Parliament Member for Brand (the letter will be adduced to the Affidavit)

To start a comprehensive investigation in relation to the extensive corruptions of the Department of Notification of AHPRA (including Mr David Van Tuinen & Mr James Griffiths) in fabricating evidence and perverting the course of Justice, as well as serous misconducts within the Medical Board of WA.

22    Faced with an application expressed in those terms of that kind, it is difficult to see how any reasonable lawyer would form a view that there was any real risk that relief of that kind might be granted on an urgent basis. An ounce of common sense was required.

23    In those circumstances, a reasonable course would be to provide a short letter to the Court (copied to the applicants) indicating that AHPRA had been served but had not been joined as a party and drawing the Court's attention to any authority that was relevant to jurisdiction. The letter could indicate that AHPRA sought to be heard if there was to be a hearing at which the grant of relief against AHPRA was to be considered in its absence. The Court could then inform AHPRA if that course was indeed contemplated. An alternative course was to appear by counsel to seek an adjournment on the basis that an explanation should be provided to the applicants as to the inappropriateness of the nature of the urgent procedure that they had invoked and the availability of procedural fairness before any action was taken by AHPRA. It was not a reasonable response for the respondents to prepare for the opposition of the application for injunctive relief on the basis that there was a real risk that the Court would grant substantive relief on an urgent basis.

24    Instead, AHPRA prepared detailed written submissions in opposition to the application. True it is that there was a jurisdictional problem with the commencement of proceedings in this Court having regard to the form of inter-governmental agreement that had been used as the foundation for the regulatory scheme. However, matters of jurisdiction could have been addressed by simply drawing the Court's attention to the relevant authorities and statutory provisions.

25    On the other hand, the claim against AHPRA was not a claim under the Fair Work Act. The phrase 'in relation to' gives s 570 a wide application that may encompass other related claims: Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20; (2015) 229 FCR 221 at [157] (Tracey, Gilmour, Jagot and Beach JJ), [173] (White J). However, the claim against AHPRA as regulator was an entirely distinct claim unrelated to the circumstances concerning the work of Dr Azad at the Medical Practice and the claims about an agreement by which Dr Norouzi was to work at the Medical Practice. It was expressed in terms that justified AHPRA in seeking legal advice. The application was served upon AHPRA thereby indicating an expectation on the part of the applicants that they were seeking orders on the basis that AHPRA had been notified of the application.

26    In all the circumstances, there should be an order for costs in favour of AHPRA. However, it should be an order that allows for costs not exceeding $2,750 (inclusive of GST).

Application for costs by proposed first to third respondents

27    For reasons that have been given, I am not persuaded that it was reasonable for the proposed first to third respondents (now respondents) to incur considerable costs for the purposes of answering the application. Further, they were on notice that the applicants sought the orders on the basis that they were to be supported by claims under the Fair Work Act. There had been no opportunity for the Court to explain the appropriate procedure to them.

28    In my view, the application insofar as it concerned the first to third respondents is properly treated as a claim under the Fair Work Act. The purpose of the provision in s 570 of that Act and the principles to be applied are well-established. They were summarised by Halley J in BDR21 v Australian Broadcasting Corporation (No 2) [2021] FCA 1347 at [26]. The reasonableness of the action of the applicants in the present case needs to be evaluated having regard to the stage of the proceedings and the fact that the applicants were conducting the proceedings in person.

29    Although Dr Azad has since been suspended from practice, that was not the case when the application for an interlocutory injunction was heard and determined. Therefore, that is not relevant to the question of costs.

30    I am not satisfied that a basis has been demonstrated for making an order for costs in favour of the now first to third respondents having regard to the terms of s 570.

31    It follows that there should be no order for costs on an indemnity basis.

Conclusion

32    For those reasons, the only order for costs should be in favour of AHPRA, which should be limited to an order as against Dr Azad and should be in the terms indicated.

33    Finally, I note that Dr Azad maintained a most respectful approach to the conduct of the hearing. However, in his written documents he has demonstrated a tendency to use extreme language to which some exception has been justifiably taken by the first to third respondents. Although, in all the circumstances, I am not persuaded that this is a matter that bears upon the cost orders to be made on this occasion I indicate that all parties are expected to maintain a respectful tone and demeanour in their dealings with each other in the conduct of court proceedings. Intensity of feeling as to the subject matter does not justify rudeness or abuse. It detracts from the identification of the real issues and the resolution of the controversy. I would encourage civility in future communications.

Associate:

Dated:    23 June 2023