Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Caruana v Dental Council of New South Wales [2024] NSWCATOD 63 Hearing dates: On the papers after 3 May 2024 Date of orders: 15 May 2024 Decision date: 15 May 2024 Jurisdiction: Occupational Division Before: ADCJ Hennessy, Deputy President Decision: (1) Under s 50 of the Civil and Administrative Tribunal Act 2013, a hearing is dispensed with. (2) Under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013, the appeal is dismissed as lacking in substance. (3) Under clause 13 of Schedule 5D to the Health Practitioner Regulation National Law, NSW Mr Caruana is to pay the Dental Council's costs of preparing the matter for hearing to 26 November 2021 and the Dental Council's costs of applying for the appeal to be dismissed. Catchwords: CIVIL PROCEDURE – dismissal as lacking in substance – where appeal, even if successful, will have no practical effect COSTS – where proceedings under the Health Practitioner Regulation National Law (NSW) are dismissed as lacking in substance Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law NSW Cases Cited: Caruana v Dental Council of NSW (No 2) [2021] NSWCATOD 193 Davis v NSW Minister for Health [2023] NSWCATAP 211 Health Care Complaints Commission v Caruana [2024] NSWCATOD 13 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Category: Principal judgment Parties: Richard Caruana (Appellant) Dental Council of New South Wales (Respondent) Representation: Counsel: Solicitors: Appellant (self-represented) Health Professional Councils Authority (Respondent) File Number(s): 2021/217990 Publication restriction: Nil REASONS FOR DECISION 1. The Dental Council of New South Wales has applied for an appeal lodged by Richard Caruana to be terminated or dismissed and for its costs. I have decided to dismiss the appeal as lacking in substance: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 55(1)(b). The appeal will not have any practical effect because it has been overtaken by other proceedings. I have also decided that it is appropriate to order Mr Caruana to pay the Dental Council's costs. 2. I have dispensed with a hearing of the Dental Council's application for dismissal. I am satisfied that the issues for determination can be adequately determined in the absence of the parties by considering their written submissions: NCAT Act, s 50(2). 3. Mr Caruana appealed to the Tribunal from an interim decision of the Dental Council made on 15 June 2021, to suspend his registration as a dentist: Health Practitioner Regulation National Law NSW (National Law), s 159. In separate proceedings before the appeal was heard, the Health Care Complaints Commission referred to the Tribunal the underlying complaints which had given rise to the interim suspension decision. The Tribunal has now completed the inquiry into those complaints. On 29 January 2024 the Tribunal published a decision cancelling Mr Caruana's registration and ordering that he may not apply for review of the cancellation order for 3 years: Health Care Complaints Commission v Caruana [2024] NSWCATOD 13. 4. As the Tribunal has now disposed of the complaints brought by the Health Care Complaints Commission, the suspension decision made by the Dental Council is no longer in effect: National Law, 150(2). Hypothetically, if the Tribunal hears the appeal, it cannot make an order which would have effect beyond the day on which the related complaint about Mr Caruana was disposed of: National Law, s 159C(2). 5. Nothing in Mr Caruana's written submissions addresses the fact that any orders the Tribunal may make can have no practical effect. Mr Caruana has not provided any reason for continuing with the appeal in those circumstances. 6. The Tribunal has power to dismiss an appeal as "lacking in substance" under s 55(1)(b) of the NCAT Act. "Lacking in substance" includes circumstances where the proceedings will have no practical effect: Davis v NSW Minister for Health [2023] NSWCATAP 211 at [53]-[54]. 7. The Tribunal's power to dismiss proceedings in s 55 of the NCAT Act is "subject to enabling legislation": NCAT Act, s 35. In this case the enabling legislation is the National Law. There are no provisions in the National Law that are contrary to or inconsistent with the Tribunal's power to dismiss proceedings under s 55(1)(b) of the NCAT Act. 8. As hearing and determining the appeal will have no practical effect, the proceedings are dismissed as lacking in substance under s 55(1)(b) of the NCAT Act. 9. The Tribunal may order any person entitled to appear at an inquiry or appeal to pay costs to another person: National Law, Sch 5D, cl 13. I note that when the appeal was adjourned on 29 November 2021, at the request of Dr Caruana, the Dental Council's costs for preparation of the hearing up to 26 November 2021 were reserved: Caruana v Dental Council of NSW (No 2) [2021] NSWCATOD 193. The Tribunal's reasons for granting an adjournment and reserving the question of costs are set out at [10]-[13]: 10 The practitioner's notice of appeal discloses that the determination of the Council made under s 150 of the National Law was to suspend his registration and hence his ability to practise his profession. Thus the appeal raises matters of a most serious nature. 11 In this case I have taken into account that a panel has been appointed and dates fixed for the hearing. Accordingly, other matters which could have been heard have been delayed due to the priority given to the listing of the practitioner's appeal. This does not support granting the adjournment. 12 However, I do take into account that the practitioner's livelihood is at stake and the appeal is likely to raise complex issues of fact and law. In these circumstances, it is appropriate for the practitioner to have the benefit of legal advice and representation in the event he wishes to instruct a solicitor and/or a barrister to represent him. I also take into account that the Council do not oppose the adjournment. 13 I discern no prejudice to either party if the appeal is adjourned on the basis proposed by the Council, namely that the Council's costs of preparation up to 26 November 2021 are reserved. The appropriateness or otherwise of those costs may be determined at the hearing of the appeal. 1. The Tribunal has a broad discretion in relation to costs, but that discretion must be exercised judicially: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [43]. The ordinary rule is that costs following the event, that is, the successful party is entitled to their costs. The Dental Council is the successful party because the appeal has been dismissed. The onus is on the unsuccessful party to displace the ordinary rule. Mr Caruana has not given any reason as to why he should not pay the Dental Council's costs. 2. Now that the proceedings have been dismissed, Mr Caruana should pay the Dental Council's costs of defending the appeal up until 26 November 2021. 3. At the request of Mr Caruana, the Tribunal adjourned the appeal proceedings on eight further occasions between 4 February 2022 and 1 September 2023. On 1 September 2023 the Tribunal listed the appeal for hearing on 21 and 22 February 2024. On 8 December 2023 the Dental Council advised the Tribunal that because of the Tribunal's decision to cancel Mr Caruana's registration, his appeal no longer had any utility. Mr Caruana should have withdrawn the appeal at that stage. Instead, he put the Dental Council to the expense of applying for the appeal to be dismissed. He should pay the Dental Council's costs of that application. Orders 1. Under s 50 of the Civil and Administrative Tribunal Act 2013 (NSW), a hearing is dispensed with. 2. Under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW), the appeal is dismissed as lacking in substance. 3. Under clause 13 of Schedule 5D to the Health Practitioner Regulation National Law, NSW Mr Caruana is to pay the Dental Council's costs of preparing the matter for hearing to 26 November 2021 and the Dental Council's costs of applying for the appeal to be dismissed. ********** 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: 15 May 2024