Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Sundararajah v Health Care Complaints Commission (No 2) [2021] NSWCATOD 100 Hearing dates: On the papers Date of orders: 21 July 2021 Decision date: 21 July 2021 Jurisdiction: Occupational Division Before: The Hon F Marks, Principal Member Decision: The applicant is to pay the costs of the respondent in an amount assessed by a costs assessor under the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) in default of agreement. Catchwords: COSTS — party/party — application for review of decision to cancel registration of dental practitioner — application dismissed and costs reserved — held respondent entitled to costs order Legislation Cited: Health Practitioner Regulation National Law (NSW), ss 163B, 163C, 165B, Sch 5D, cl 13 Civil and Administrative Tribunal Act 2013 (NSW), s 4 Cases Cited: Health Care Complaints Commission v Sundarajah (No 2) [2018] NSWCATOD 86 Sundarajah v Health Care Complaints Commission [2020] NSWCATOD 144 Chen v Medical Council of NSW (No 2) [2021] NSWCATOD 64 Texts Cited: None cited Category: Costs Parties: Raahulan Sundarajah (Applicant) Health Care Complaints Commission (Respondent) Representation: Solicitors: Applicant (self-represented) Health Care Complaints Commission (Respondent) File Number(s): 2020/00194192 Publication restriction: Pursuant to section 64(1) of the Civil and Administrative Tribunal Act 2013: 1. The disclosure and/or publication of the name of the person listed in Part 1 of the document entitled "Suppression Orders" and filed with the Tribunal on 30 November 2020, and who is referred to as "Patient A" in the decision in HCCC v Sunda [2013] NSWDT 1, or any material which might tend to identify that person, is prohibited. 2. The disclosure and/or publication of the names of the persons listed in Part 2 of the document entitled "Suppression Orders" and filed with the Tribunal on 30 November 2020, and whose names were subject to a non-publication order in proceedings 1620214; 2016/378775, or any material which might tend to identify those persons, is prohibited. 3. The disclosure and/or publication of the name of the solicitor listed in Part 3 of the document entitled "Suppression Orders" and filed with the Tribunal on 30 November 2020, being a solicitor whose relationship with the applicant was a matter relevant to the proceedings, or any material which might tend to identify that person (including but not limited to the employing law firm of the solicitor at the relevant time), is prohibited. reasons for decision Background 1. The applicant in these proceedings, Raahulan Sundarajah was a registered dental practitioner. In proceedings brought before this Tribunal the applicant was found guilty of professional misconduct under the Health Practitioner Regulation National Law (NSW) (the National Law). The Tribunal cancelled the applicant's registration and disqualified him from seeking a review of that cancellation order for a period of 12 months. See Health Care Complaints Commission v Sundarajah (No 2) [2018] NSWCATOD 86. 2. The applicant brought an application pursuant to the provisions of Part 8 of Division 8 of the National Law, in which he sought a "reinstatement order" the effect of which would allow him to make an application for registration as a dental practitioner to the National Board. In Sundarajah v Health Care Complaints Commission [2020] NSWCATOD 144 the Tribunal, differently constituted, dismissed that application and reserved costs granting liberty to apply. The respondent has exercised that liberty to apply, and these reasons deal with that question of costs. Jurisdiction and power to make a costs order 1. In general terms, proceedings brought before the Tribunal pursuant to the provisions of the National Law attract a costs jurisdiction. This is provided for in clause 13 of Schedule 5D to that Act: 13 Tribunal may award costs [NSW] (1) The Tribunal may order the complainant (if any), the registered health practitioner or student concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal. (2) When an order for costs has taken effect, the Tribunal is, on application by the person to whom the costs have been awarded, to issue a certificate setting out the terms of the order and stating that the order has taken effect. (3) The person in whose favour costs are awarded may file the certificate in the District Court, together with an affidavit by the person as to the amount of the costs unpaid, and the Registrar of the District Court must enter judgment for the amount unpaid together with any fees paid for filing the certificate. (3A) The Tribunal may fix the amount of costs itself or order that the amount of costs be assessed by a costs assessor under the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (4) This clause applies instead of section 60 (Costs) of the Civil and Administrative Tribunal Act 2013. 1. It follows that, in general terms, a party which is successful in proceedings constituting an inquiry or appeal under the National Law will be entitled to seek a costs order, although whether such an order will be made will require the appropriate exercise of discretion by the Tribunal. 2. Section 163B(1) of the National Law characterises the proceedings brought by the applicant seeking reinstatement as an inquiry and section 163C(4) gives the respondent an entitlement as of right to participate in those proceedings. I set out hereunder the relevant provisions: 163B Powers on review [NSW] (1) The appropriate review body must conduct an inquiry into an application for review and may then do any of the following - (a) dismiss the application; (b) make an order ending or shortening the period of the suspension concerned; (c) make a reinstatement order; (d) make an order altering or removing the conditions to which the person's registration is subject, including by imposing new conditions; (e) make an order— (i) ending or shortening the period of a prohibition order; or (ii) altering or removing the conditions to which the person is subject under a prohibition order, including by imposing new conditions. (2) If the appropriate review body makes an order altering a critical compliance condition, or removing a critical compliance condition and imposing a new condition, the altered condition or new condition is a "critical compliance condition" unless the body orders otherwise. (3) A "reinstatement order" is an order that the person may be registered in accordance with Part 7 if— (a) the person makes an application for registration to the National Board; and (b) the relevant National Board decides to register the person. (3A) Any condition imposed on a person's registration by the National Board under Part 7 applies but only to the extent that it is not inconsistent with conditions imposed or altered by the appropriate review body under subsection (4). (4) The appropriate review body may also impose conditions on the person's registration or alter the conditions to which the person's registration is to be subject under the reinstatement order. (5) The order on a review under this section may also provide that the order is not to be reviewed under this Division until after a specified time. 163C Inquiry into review application [NSW] (1) A review under this Division is a review to determine the appropriateness, at the time of the review, of the order concerned. (2) The review is not to review the decision to make the order, or any findings made in connection with the making of that decision. (3) In addition to any other matter the review may take into account, the review must take into account any complaint made or notified to a Council or a National Board, or a former Board under a repealed Act, about the person, whether the complaint was made or notified before or after the making of the order that is the subject of the review and whether or not the complaint was referred under Subdivision 2 of Division 3 or any other action was taken on the complaint. (4) A Council and the Commission are entitled to appear at any inquiry conducted by the Tribunal under this Division. 1. The applicant did not oppose the making of a costs order. Nevertheless, it is necessary for the Tribunal to be satisfied that it is appropriate to make that order. 2. I am empowered as the presiding member of the Tribunal sitting alone to determine this application under section 165B(5A) of the National Law: (5A) The Tribunal, when constituted to make an ancillary decision or an interlocutory decision within the meaning of the Civil and Administrative Tribunal Act 2013, is to be constituted by the Tribunal List Manager or the member referred to in subsection (2) (a). 1. Subsection (2)(a) relevantly refers to a Division member who is an Australian lawyer of at least 7 years' standing. 2. For completeness I note that section 4 of the Civil and Administrative Tribunal Act 2013 defines a decision concerning the awarding of costs in proceedings as being an ancillary decision. Consideration 1. The nature of an application for a reinstatement order will circumscribe the matters which should be taken into account in determining whether a costs order should be made. The respondent in these proceedings carried out the role of contradictor and facilitated the testing of the applicant's evidence in the proceedings. The respondent also enabled the presentation of expert psychiatric evidence which was adopted by the Tribunal as one of a number of significant factors which contributed to its decision to dismiss the application for reinstatement. Without the benefit of the role played by the respondent, the task of the Tribunal in upholding the health and safety of the community would have been inhibited. 2. The circumstances of these proceedings are significantly different to those considered by the Tribunal in Chen v Medical Council of NSW (No 2) [2021] NSWCATOD 64, in which the applicant in those proceedings was successful in gaining a reinstatement order, and each party was ordered to pay their own costs. 3. The respondent did not engage in any conduct which would disentitle it to a favourable costs order in the nature of oppressive conduct by unduly delaying or complicating the proceedings. Furthermore, I observe, as is well established, that impecuniosity is not a ground to deny a party a favourable costs order in circumstances where such an order should otherwise be made. 4. I conclude that in all the circumstances it is appropriate to make a costs order in favour of the respondent. Order 1. The applicant is to pay the costs of the respondent in an amount assessed by a costs assessor under the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) in default of agreement. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 07 December 2023 - Case title updated: from Sundarajah to Sundararajah DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 December 2023