Health Care Complaints Commission v Balafas [2021] NSWCATOD 153

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Balafas [2021] NSWCATOD 153 Hearing dates: 3 September 2021 Date of orders: 29 September 2021 Decision date: 29 September 2021 Jurisdiction: Occupational Division Before: Hennessy ADCJ, Deputy President Decision: 1. The application by the respondent to set aside the proceedings is refused. 2. Within 14 days of the date of these reasons for decision, the Health Care Complaints Commission is to file and serve submissions in support of its application for costs. 3. Within 14 days of receiving such a submission, Dr Balafas is to file and serve any submissions in reply. 4. Each submission should include the party's view as to whether any application for costs should be determined without a hearing. Catchwords: JUDGMENTS AND ORDERS — Amending, varying and setting aside — For irregularity– where respondent to disciplinary proceedings applies to have the proceedings set aside on the basis of irregularities – where stage one proceedings is complete but no decision made – whether various circumstances constitute an irregularity under s 53 of the Civil and Administrative Tribunal Act 2013 (NSW) – whether Tribunal has a general unlimited discretion to set aside proceedings to prevent unfairness Legislation Cited: Civil Procedure Act 2005 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) Health Practitioner Regulation National Law (NSW) Evidence Act 1995 (NSW) Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (NSW) Supreme Court Act 1970 (NSW) Cases Cited: Alexakis v Health Care Complaints Commission [2021] NSWCA 217 Atkinson v Crowley [2011] NSWCA 194 Australian Coastal Shipping Commission v Curtis Cruising Pty Ltd (1989) 17 NSWLR 734 Bobolas v Waverley Council (2016) 92 NSWLR 406; [2016] NSWCA 139; Choy v Tiaro Coal Ltd (in liq) (2018) 98 NSWLR 493; [2018] NSWCA 205; [2018] 130 ACSR 475 Deveigne v Askar (2007) 69 NSWLR 327; [2007] NSWCA 45 Health Care Complaints Commission v Marino [2016] NSWCATOD 37 Health Care Complaints Commission v Vega [2015] NSWCATOD 62 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 Nursing and Midwifery Board of Australia v Linquist [2019] NSWSC 978 R v Livingstone [2004] NSWCCA 407 R v Presser (1958) VR 45 Sudath v Health Care Complaints Commission (2012) 84 NSWLR 474; [2012] NSWCA 171 XDX [2014] NSWCATGD 38 Texts Cited: LexisNexis, Ritchie's Uniform Civil Procedure NSW Category: Procedural rulings Parties: Health Care Complaints Commission (Applicant) John Balafas (Respondent) Representation: Counsel: R Mathur (Applicant) P Griffin SC (Respondent) P Dwyer (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Unsworth Legal Pty Limited (Respondent) File Number(s): 2019/00246014 2020/00016868 Publication restriction: Nil