Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Neale [2024] NSWCATOD 16 Hearing dates: On the papers Date of orders: 9 February 2024 Decision date: 09 February 2024 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 as agreed or assessed on a party and party basis. Catchwords: COSTS – where applicant is successful in substantive proceedings – whether respondent should pay applicant's costs Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) 2009 Health Practitioner Regulation National Law (NSW) 2009 Cases Cited: Health Care Complaints Commission v Brush (No 2) [2015] NSWCATOD 154 Health Care Complaints Commission v CSM [2016] NSWCATOD 125 Health Care Complaints Commission v Livermore [2021] NSWCATOD 115 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Lucire v Health Care Complaints Commission (no 2) [2011] NSWCA 182 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Category: Costs Parties: Health Care Complaints Commission (Applicant) Brian Lewis Neale (Respondent) Representation: Health Care Complaints Commission (Applicant) Mills Oakley (Respondent) File Number(s): 2022/00196128 Publication restriction: Nil REASONS FOR DECISION Introduction 1. On 11 September 2023 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. The Tribunal reserved the costs of the proceedings. The Applicant sought an order that the Respondent pay its costs of and incidental to the proceedings as agreed or assessed on a party and party basis. 2. By email dated 26 September 2023 the Applicant advised the Tribunal that, with the consent of the Respondent's solicitor, and the Respondent's solicitor's approval of the content of the Applicant's email, the Commission sought "an order under clause 13 of Schedule 5D of the National Law that the Respondent pay the Commission's costs as agreed or assessed. The Commission relies on its written submissions with regarding costs (paragraph 21 to 27 of the Commission's Stage 2 submissions dated and filed on 4 August 2023). In relation to order 4 made on 11 September 2023, the Commission does not seek to make any further written submissions". 3. The email further advised that "The Respondent consents to an order under clause 13 of Schedule 5D of the National Law that the Respondent pay the Commission's costs as agreed or assessed. In relation to order 5 made on 11 September 2023, the Respondent does not wish to make any written submissions on costs". 4. Finally, the email advised that "In relation to order 6 made on 11 September 2023, both parties consent to an order dispensing with a hearing of the costs application pursuant to s50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). The parties accordingly request that the Tribunal determine the costs application on the basis of the written submissions mentioned above and the matters noted in this email". Jurisdiction 1. As submitted by the parties, clause 13 of Schedule 5D of the National Law invests the Tribunal with power to award costs. Section 165B of the National Law is concerned with the "constitution of Tribunals for complaints, applications and appeals". Section 165B(5A) provides that, when constituted to make an "ancillary decision or an interlocutory decision within the meaning of the Civil and Administrative Tribunal Act 2013 (CAT Act) the Tribunal is to be constituted by the Tribunal List Manager or, relevantly for present purposes, a member who, pursuant to s 165B(2)(a) is a "senior judicial offer"". Section 165(b) of the National Law defines "senior judicial officer" to include a judge of the District Court. Section 4(1)(b) of the CAT Act provides that "a decision concerning the awarding of costs" is an ancillary decision. The Tribunal is satisfied that, as presently constituted, it has jurisdiction to determine the Applicant's costs application. Dispensing with a hearing 1. Both parties suggest that dispensing with a hearing, or oral hearing of the present application is appropriate. The Tribunal is satisfied that the issue for determination can be adequately determined in the absence of the parties by considering the written submissions filed by them and, the contents of the email of 26 September 2023 referred to above. Other than increasing the costs which will ultimately be payable by the Respondent, an oral hearing would serve no useful purpose in the present circumstances. Clearly, the parties have been afforded an opportunity to make submissions about the proposed order as required by s 50(3)(a) of the National Law. Consideration 1. Having regard to the parties' agreement, and the reality that both parties have throughout the proceedings been represented by legal advisers of the highest calibre, the Tribunal requires little persuasion that it should exercise the discretion to grant the relief sought by the Applicant and consented to by the Respondent. Even without that consent, the Tribunal would have been satisfied that relief in the terms sought by the Applicant was appropriate. 2. In its submissions with respect to costs dated 4 August 2023 the Applicant identified the relevant statutory provisions with respect to costs and a number of the principles relevant in that regard. As is not in doubt, costs are awarded to compensate a successful party, rather than punish an unsuccessful party and, as a general rule, follow the event (HCCC v Philipiah [2013] NSWCA 342). 3. The presumption that a successful party is entitled to receive its costs is generally only displaced where there has been some disentitling conduct by the successful party (Oshlack v Richmond River Council (1998) 193 CLR 72 [1998] HCA 11, Health Care Complaints Commission v CSM [2016] NSWCATOD 125, Health Care Complaints Commission v Brush (No. 2) [2015] NSWCATOD 154). 4. A respondent bears the onus of establishing a basis for any departure from the general rule (Health Care Complaints Commission v Livermore [2021] NSWCATOD 115). If the successful party is found to have engaged in disentitling conduct the general rule may be departed from. 5. The Applicant set out in detail ([22]-[25]) the complaints in respect of which it was wholly successful and, at [26], made a number of submissions with respect to a complaint which it failed to establish to the requisite standard, the Tribunal finding that the conduct of the Respondent of which the Applicant complained fell below the standard reasonably expected of him (Stage 1 Decision [67]), but was not comfortably satisfied that the conduct fell significantly below that standard (Stage 1 Decision [67]). 6. The Applicant submitted ([27]) four reasons why its failure on one of four complaints ought not result in it being denied an order for the whole of its costs on the usual basis (see Lucire v Health Care Complaints Commission (No 2.) [2011] NSWCA 182). 7. As the Applicant's email of 26 September 2023 indicated, the Respondent filed no submissions in the proceedings with respect to costs. Determination 1. The Tribunal is satisfied that the Respondent should be ordered to pay the Applicant's costs as agreed or assessed on a party and party basis. The Applicant was overwhelmingly successful in the proceedings. Although, one way or another, the Respondent admitted many of the allegations of primary fact upon which the Applicant relied, and his inability to admit that, based on those facts, the Applicant made out its case with respect to three of the four complaints against him meant that the Applicant had to prove its case to the comfortable satisfaction of the Tribunal. This it did, and was overwhelmingly successful in that regard. 2. There is no disentitling conduct on the part of the Applicant and, properly, the Respondent does not suggest the contrary. The presumption that costs should follow the event is not rebutted by any fact or circumstance in these proceedings. The Applicant is entitled to the relief it seeks to which the Respondent consents. Orders 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 as agreed or assessed on a party and party basis. ********** 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 09 February 2024 - Category corrected from Principal Judgement to Costs 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: 09 February 2024