Health Care Complaints Commission v Govan (No 2) [2022] NSWCATOD 108

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Govan (No 2) [2022] NSWCATOD 108 Hearing dates: On the papers Date of orders: 16 September 2022 Decision date: 16 September 2022 Jurisdiction: Occupational Division Before: Coleman SC ADCJ Decision: (1) Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) the Tribunal dispenses with an oral hearing of the present application. (2) The Respondent is ordered to pay the Applicant's costs of and incidental to the substantive proceedings and this application as agreed or assessed on a party and party basis. Catchwords: COSTS- where applicant successful in substantive proceedings- whether costs should follow the event Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) 2009 Cases Cited: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Murray Govan (Respondent) Representation: Health Care Complaints Commission (Applicant) Peter Neil (Enduring Power of Attorney) (Respondent) File Number(s): 2021/00050764 Publication restriction: Nil

REASONS FOR DECISION

Introduction 1. On 22 December 2021 the Tribunal ordered, pursuant to s 149C(1) of the Health Practitioner Regulation National Law (NSW) (National Law) that the registration of the Respondent as a medical practitioner be cancelled, that, pursuant to s 149C(5) of the National Law, the Respondent be prohibited from providing health services until the expiration of a period of five years from the date of cancellation of his registration, and that, pursuant to s 149C(7) of the National Law the Respondent not make an application for review of the order cancelling his registration until the expiration of a period of five years from the date of cancellation of his registration. The Tribunal also ordered that the Applicant's costs of the proceedings be reserved and made directions for the filing of written submissions with respect to that issue. 2. On 14 July 2022, the Tribunal's original directions with respect to the filing of submissions in relation to costs were amended to provide that, by 15 July 2022 the Respondent file and serve any submissions in opposition to the making of an order that the Respondent pay the Applicant's costs of the proceedings as agreed or assessed on a party and party basis. 3. On 7 July 2022 Mr Peter Neil, who stated that he continues to hold an Enduring Power of Attorney for the Respondent, filed written submissions opposing any order that the Respondent pay the Applicant's costs of the proceedings. Mr Neil's position is analogous to that of an "adviser" representing the Respondent by leave pursuant to s 165J of the National Law. The Applicant has not taken objection to his continued representation of the Respondent. 4. On 28 July 2022 the Applicant filed submissions in support of its application for costs and in response to the submissions on behalf of the Respondent. 5. Neither party opposed the costs dispute being determined on the papers and without an oral hearing.