Health Care Complaints Commission v FTR [2023] NSWCATOD 46

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v FTR [2023] NSWCATOD 46 Hearing dates: 20 March 2023 Date of orders: 14 April 2023 Decision date: 14 April 2023 Jurisdiction: Occupational Division Before: The Hon G Watts AM ADCJ, Principal Member Dr J Aitken, Senior Member L Cotterell, Senior Member C Berglund, General Member Decision: (1) The Practitioner is to pay 10% of the Applicant's costs of these proceedings on a party/party basis as agreed or, failing agreement, to be assessed. (2) The Applicant is to pay 90% of the Practitioner's costs of obtaining legal services in respect to these proceedings, excluding any legal costs covered by insurance and any incurred by the Practitioner that relate to him obtaining legal advice in relation to the applications to adjourn the first and second scheduled hearing dates, and deducting 90% of any costs thrown away by the Applicant as a result of the adjournment of the first and second scheduled hearings, on a party/party basis as agreed or, failing agreement, as assessed. (3) Unless leave is first granted by a Tribunal, pursuant to cl 7(1)(b)(iii) of Schedule 5D of the Health Practitioner Regulation National Law (NSW), an order is made directing that the name of the Practitioner and the file number for these proceedings not be published in these reasons for decision. Catchwords: OCCUPATIONS – medical practitioners – misconduct and discipline – where serious substantive complaints withdrawn by the applicant at hearing – where a complaint of unsatisfactory professional conduct was established and the practitioner was cautioned – where both parties made applications for a costs order – where practitioner made application for non-publication order of their name – where the practitioner's mother residing overseas has a possibly fatal condition due to her concerns about the proceedings – whether circumstances special, exceptional, or out of the ordinary to avoid general principle of open justice Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 4, 38, 64(1)(c) Criminal Procedure Act 1986 (NSW), s 294A Family Law Act 1975 (Cth), s 102NA Health Practitioner Regulation National Law (NSW), ss 139B(1)(b), 149A(1)(a), 150, 150H, 165(b), 165B(5A), Sch 5D cll 2, 7(1)(b) Health Practitioner Regulation (New South Wales) Regulation 2016, reg 6(1), Sch 4 cll 1(2)(a), 1(2)(c), 3(2) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Cakan v Health Care Complaints Commission [2020] NSWCATOD 116 HCCC v Dr Gow (Suppression order) [2008] NSWMT 3 Health Care Complaints Commission v BXD (No 2) [2015] NSWCATOD 135 Health Care Complaints Commission v CSM [2016] NSWCATOD 125 Health Care Complaints Commission v Dowla (No 2) [2019] NSWCATOD 156 Health Care Complaints Commission v Dr A [2012] NSWMT 10 Health Care Complaints Commission v Dr CRF [2016] NSWCATOD 120 Health Care Complaints Commission v FDE [2021] NSWCATOD 215 Health Care Complaints Commission v FTE [2023] NSWCATOD 30 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complaints Commission v Quan [2019] NSWCATOD 160 Health Care Complaints Commission v Reid (Publication Application) [2019] NSWCATOD 31 Health Care Complaints Commission v Rickard [2017] NSWCATOD 120 Health Care Complaints Commission v Vo [2014] NSWCATOD 127 Health Care Complaints Commission v XC [2015] NSWCATOD 9 Health Care Complaints Commission v ZXY [2021] NSWCATOD 136 Northern Territory v Sangare (2019) 265 CLR 165; [2019] HCA 25 Walton v Momot [1997] NSWCA 334 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) FTR (Respondent) Representation: Counsel: N Evans (Applicant)