Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Balafas (No 2) [2021] NSWCATOD 175 Hearing dates: On the papers after 19 October 2021 Date of orders: 04 November 2021 Decision date: 04 November 2021 Jurisdiction: Occupational Division Before: Hennessy ADCJ, Deputy President Decision: Dr Balafas is to pay the costs of the Health Care Complaints Commission of the application to set aside the proceedings under s 53(4) of the Civil and Administrative Tribunal Act 2013 (NSW) as agreed or, failing agreement, as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). Catchwords: COSTS – application for costs following unsuccessful application to set aside the proceedings – where Dr Balafas wholly unsuccessful on set aside application – where Dr Balafas did not discharge onus of identifying any disentitling conduct on part of the Health Care Complaints Commission – whether consideration of costs application should be deferred until finalisation of the Stage One proceedings Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) Legal Profession Uniform Law Application Act 2014 (NSW) Cases Cited: Arian v Nguyen [2001] NSWCA 5 HCCC v Dinakar [2009] NSWMT 8 HCCC v Dr Mazzaferro [2011] NSWMT 9 Health Care Complaints Commission v Balafas [2021] NSWCATOD 153 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Segal v Medical Council of New South Wales [2020] NSWCATOD 86 Smithson v Medical Council of New South Wales [2020] NSWCATOD 105 Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111 Category: Costs Parties: Health Care Complaints Commission (Applicant) John Balafas (Respondent) Representation: Counsel: R Mathur (Applicant) P Dwyer (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Unsworth Legal Pty Limited (Respondent) File Number(s): 2019/00246014 2020/00016868 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication of the names and addresses of Patient A and Patient B is prohibited. REASONS FOR DECISION Overview 1. The Health Care Complaints Commission (the Commission) applies for its costs in relation to an application by Dr Balafas to set aside the proceedings under s 53(4) of the Civil and Administrative Tribunal Act 2013 (NSW) (Tribunal Act): Health Care Complaints Commission v Balafas [2021] NSWCATOD 153. Dr Balafas was wholly unsuccessful in the set aside application. None of the four so-called "irregularities" was an irregularity which justified the proceedings being set aside. 2. After the Tribunal delivered the decision refusing the set aside application, Dr Balafas applied for the Stage One proceedings to be re-opened. The decision in those proceedings has been reserved. The purpose of that application was to tender further evidence in Dr Balafas's defence including evidence from his treating psychiatrist, Dr Atherton. The Tribunal is yet to rule on that application. 3. Under Schedule 5D, clause 13 of the Health Practitioner Regulation National Law (NSW) (National Law), the Tribunal has the power to require the Commission, a registered health practitioner or any other person entitled to appear before the Tribunal to pay the costs of another. The presumption is that a successful party is entitled to its costs: HCCC v Dinakar [2009] NSWMT 8; HCCC v Dr Mazzaferro [2011] NSWMT 9 at [67]. The onus is on the losing party to establish a basis for any departure from the usual rule: Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111 at [10]; NSW v Stanley [2007] NSWCA 330 at [24]. Because costs are intended to compensate the successful party, the general rule will only be displaced where there has been some sort of disentitling conduct on the part of the successful party: Arian v Nguyen [2001] NSWCA 5 at [36]; Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [40] and [69]. 4. Dr Balafas did not identify any disentitling conduct, but says that the issue of costs should be deferred until after the final decision is made in the Stage One proceedings. Dr Balafas gave three reasons in support of that submission. 5. First, Dr Balafas has foreshadowed that there are some instances of disentitling conduct which the Tribunal should take into account when exercising the discretion to award costs in the Stage One proceedings. However, even if Dr Balafas intends to make such an application, it is not relevant to the issue of costs on the set aside application. Dr Balafas's set aside application is wholly separate from the Stage One substantive proceedings. I agree with the Commission's submission on this point in its written submissions: "The Commission is now entitled to recover its costs of the section 53 application. The above principles are outlined on this current application for costs to highlight the necessity in not conflating matters relevant to a costs application on prosecution of the Complaint as compared to entitlement to costs of the respondent's unsuccessful application to set aside proceedings. Depending on the outcome of proof of the Complaint, in whole or in part, the Commission may then seek its costs of the substantive proceedings and the parties may then make submissions regarding the conduct of the substantive proceedings. Any submissions regarding the conduct of the substantive proceedings are irrelevant to the current application for costs of the section 53 application which was refused." 1. Secondly, Dr Balafas submitted that the set aside application is similar to one where a practitioner who is suspended after a hearing under s 150 of the National Law lodges an appeal and a stay application: National Law, ss 159, 159B and 165L(2). Dr Balafas gave two examples of the Tribunal deciding to defer the consideration of a costs order on the stay application until after the determination of the substantive appeal: Segal v Medical Council of New South Wales [2020] NSWCATOD 86; Smithson v Medical Council of New South Wales [2020] NSWCATOD 105. 2. There was no discussion of the reasons for deferring the consideration of a costs order in either of these decisions. In any case, this situation is not similar to the present proceedings. For the reasons I have given, Dr Balafas's set aside application is wholly separate from the Stage One substantive proceedings. 3. Thirdly, deferring consideration of the costs application is said to be consistent with one of the objects of the Tribunal Act to "resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible": Tribunal Act, s 3(d). That object is said to be achieved in this case if the issue of costs is deferred until after the Stage One proceedings and dealt with by way of written submissions. The parties have already had an opportunity to make written submissions on this issue. Dr Balafas has not identified or foreshadowed any disentitling conduct on the part of the Commission in response to the set aside application. Deferring consideration of this issue will potentially make the proceedings more expensive and no more just. Order 1. Dr Balafas is to pay the costs of the Health Care Complaints Commission of the application to set aside the proceedings under s 53(4) of the Civil and Administrative Tribunal Act 2013 (NSW) as agreed or, failing agreement, as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). ********** 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 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: 04 November 2021