Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Sathiyapal [2024] NSWCATOD 84 Hearing dates: 28 May 2024 Date of orders: 25 June 2024 Decision date: 25 June 2024 Jurisdiction: Occupational Division Before: ADCJ Hennessy, Deputy President Decision: (1) Under s 165C(2) of the Health Practitioner Regulation National Law (NSW) the proceedings are terminated. (2) The Tribunal is to be reconstituted in accordance with Part 8 Division 10 of the Health Practitioner Regulation National Law (NSW) for the purposes of conducting a new inquiry. Catchwords: OCCUPATIONS — Heath practitioners — Health Practitioner Regulation National Law (NSW) – where presiding member completed a 5 year term of office and was not re-appointed – whether presiding member has vacated office before the Tribunal has completed an inquiry – whether proceedings are terminated – whether the Tribunal should be reconstituted Legislation Cited: Health Practitioner Regulation National Law (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Health Care Complaints Commission v Do [2013] NSWMT 7 Health Care Complaints Commission v Dowla [2018] NSWCATOD 96 Health Care Complaints Commission v Dowla [2019] NSWCATOD 117 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Medical Council of New South Wales v Lee [2017] NSWCA 282 Ross v R [1979] HCA 29; (1979) 141 CLR 432 at 440; Texts Cited: Pearce, DC, Statutory Interpretation in Australia (10th ed, 2024) Category: Procedural rulings Parties: Health Care Complaints Commission (Applicant) Kulanayagam Sathiyapal (Respondent) Representation: Counsel: S Maybury (Applicant) R Rodger (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Moray & Agnew (Respondent) File Number(s): 2022/00307144 Publication restriction: None REASONS FOR DECISION Overview 1. On 5 February 2024, the Tribunal delivered a decision in Health Care Complaints Commission v Sathiyapal [2024] NSWCATOD 14 (the Stage 1 decision). The Tribunal's decision was that Dr Sathiyapal is guilty of "unsatisfactory professional conduct" and "professional misconduct" as those terms are defined in the Health Practitioner Regulation National Law (NSW) (National Law). The Tribunal directed the parties to provide further evidence and submissions as to the disciplinary orders that should be made following a second hearing. 2. For the Stage 1 hearing, the Tribunal was constituted by the presiding member, Judge Cole (Cole DCJ) two health practitioners and one lay person: National Law, s 165B. On 27 February 2024 Cole DCJ completed a 5 year term of office as a Deputy President of the Tribunal and did not seek re-appointment. The issue to be determined is the effect of those circumstances on the proceedings. For the following reasons I have decided that the effect is that the inquiry is terminated and that the Tribunal should be reconstituted for the purpose of conducting a new inquiry. Legislative provisions relating to the constitution and reconstitution of the Tribunal in proceedings in the Health Practitioner List 1. The Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) establishes the Tribunal and regulates its membership: NCAT Act, Pt 2, Div 1. There are four Divisions of the Tribunal, including the Occupational Division: NCAT Act, Pt 2, Div 2. The functions of the Tribunal in relation certain "enabling legislation", including the National Law, are allocated to the Occupational Division and are to be exercised in that Division: NCAT Act, Sch 5, cl 4(1) and s 16(2) and s 16(3). 2. The relevant Schedule to the NCAT Act for the Occupational Division is Schedule 5 which has six Parts. Part 4 contains special provisions relating to occupations including health practitioners. Division 3 of that Part creates a Division List within the Occupational Division called the "Health Practitioner List". When making decisions or exercising functions under the National Law, the Tribunal is exercising its "general jurisdiction": NCAT Act, s 29. With the exception of proceedings involving the exercise of the Tribunal's administrative review jurisdiction, all proceedings involving the exercise of a Division function in relation to the National Law are to be entered and managed in the Health Practitioner List: NCAT Act, Sch 5, cl 10. 3. The Tribunal is to be constituted "by one or more Division members of the Division to which the function of dealing with the proceedings is allocated": NCAT Act, s 27(1). Section 52(1)(b) of the NCAT Act allows the President to replace a member after the consideration of a matter has commenced where a member ceases to be a member: 52 Reconstitution of Tribunal during proceedings (1) The President may replace the member, or one of the members, constituting the Tribunal after the consideration of a matter by the Tribunal has commenced if, before the matter is determined, the member— (a) becomes unavailable for any reason, or (b) ceases to be a member, or (c) ceases to have a qualification required for participation in the proceedings, or (d) is directed by the President not to take part in the proceedings. (2) The President may not replace a member unless the President has first— (a) afforded the parties an opportunity to make submissions about the proposed replacement, and (b) taken any such submissions into account. (2A) The President must not make a direction under subsection (1)(d) in relation to a member unless the President— (a) has consulted the member, if it is reasonably practicable to do so, and (b) is satisfied that making the direction is— (i) in the interests of justice, and (ii) in the interests of achieving the expeditious and efficient conduct of the proceedings, and (iii) otherwise appropriate having regard to the objects of this Act. (2B) The President may give directions as to the member or members who are to constitute the Tribunal after the consideration of a matter by the Tribunal has commenced. (3) The Tribunal as reconstituted under this section is to have regard to the evidence, submissions and decisions in relation to the matter that were given or made before the Tribunal was reconstituted. 1. Section 52 is in Part 4 of the NCAT Act headed "Practice and procedure". That provision is "subject to enabling legislation" including the National Law: NCAT Act, s 35. Each of the provisions of this Part is subject to enabling legislation and the procedural rules. 1. Clause 8(1)(b) of Schedule 2 to the NCAT Act allows a member who ceases to be a member because of the expiration of the period of the member's appointment, to complete unfinished matters. 8 Members and former members may complete unfinished matters (1) This clause applies to a member (an affected member) dealing with any matters relating to proceedings before the Tribunal that have been heard or partly heard (or were otherwise the subject of deliberations) by the member if, during the proceedings, the member— (a) ceases to have a qualification specified by a Division Schedule for a Division of the Tribunal or enabling legislation for participation in the proceedings other than because of any of the following reasons— (i) misconduct or unsatisfactory conduct of the member, (ii) the mental incapacity of the member, (iii) the member becoming bankrupt or insolvent, or (b) ceases to be a member because of the expiration of the period of the member's appointment, or both. (2) An affected member may, despite becoming an affected member, complete or otherwise continue to deal with any matters in the proceedings concerned. (3) While completing or otherwise dealing with matters referred to in subclause (2), the affected member is taken to have and may exercise all the rights and functions of a member that the affected member had immediately before becoming an affected member. 1. Clause 8 of Schedule 2 of the NCAT Act is not "subject to enabling legislation" under s 35 because it not in Part 4 of the NCAT Act. 2. Clause 13 of Schedule 5 to the NCAT Act provides that when exercising an Occupational Division function in proceedings in the Health Practitioner List, the Tribunal is to be constituted and, where necessary, reconstituted in accordance with "any applicable requirements specified by or under the National Law". Constitution of Tribunal for proceedings entered in Health Practitioner List (1) The Tribunal, when exercising a Division function in proceedings that are entered in the Health Practitioner List, is to be constituted (and, where necessary, reconstituted) in accordance with any applicable requirements specified by or under the National Law for the constitution of the Tribunal in proceedings of the kind concerned. (2) Nothing in subclause (1) limits the exercise by the List Manager for the Health Practitioner List (or a delegate of the List Manager) of any of the functions of the List Manager. Note— The National Law also makes special provision with respect to certain practice and procedure for proceedings entered in the Health Practitioner List. 1. The provisions of a Division Schedule "prevail to the extent of any inconsistency between those provisions and any other provisions of this Act (except Part 3A) or the provisions of the procedural rules": NCAT Act, s 17(3). (Part 3A relates to federal proceedings which are not relevant in this case. There is nothing about the constitution or reconstitution of the Tribunal in the procedural rules.) 2. Part 8, Division 10 of the National Law is headed "Constitution and proceedings of Tribunal" and includes s 165A: 165A Relationship with NCAT Act [NSW] The provisions of this Division are intended to apply despite anything to the contrary in the Civil and Administrative Tribunal Act 2013. 1. Two provisions in Subdivision 2 of Division 10 regulate the constitution and reconstitution of proceedings in the Health Practitioner List. Section 165B is about the constitution of the Tribunal and s 165C is about the effect of a vacancy on unfinished Tribunal proceedings. 165B Constitution of Tribunal for complaints, applications and appeals [NSW] (1) If a complaint is referred to the Tribunal or an application or appeal is made to the Tribunal under this Law— (a) the Tribunal must inform the Council for the health profession of the referral, application or appeal; and (b) the Council for the health profession must select 3 persons (whether or not they are currently Division members) to sit as members of the Tribunal in the proceedings. Note— Schedule 5 to the Civil and Administrative Tribunal Act 2013 provides the President must appoint a person as an occasional member for particular proceedings entered in the Health Practitioner List if that person has been selected for participation in the proceedings in accordance with any applicable procedures specified by or under this Law. If a person selected under subsection (1) (b) is not already a Division member, the President will be required to appoint the person as an occasional member in relation to the proceedings. (2) Except as provided by subsections (4), (5) and (5A), the Tribunal, when conducting an inquiry or hearing an appeal under this Law, is to be constituted by— (a) 1 Division member who is an Australian lawyer of at least 7 years' standing or, in the case of medical practitioner proceedings, 1 Division member who is a senior judicial officer; and (b) 2 health practitioners selected for appointment by the Council as occasional members under subsection (1) (b) who are registered in the same health profession as the health practitioner or student the subject of the inquiry or appeal; and (c) 1 lay person (that is, a person who is not registered in the health profession) selected for appointment by the Council as an occasional member under subsection (1) (b) from among a panel of lay persons for the time being nominated by the Minister. (3) If the health profession has divisions, at least one and, if practicable, both, of the health practitioners referred to in subsection (2) (b) must be registered in the same division of the health profession as the health practitioner or student the subject of the inquiry or hearing. (4) The Tribunal, when constituted to hear appeals under this Law that are restricted to points of law, is to be constituted by— (a) in the case of medical practitioner proceedings, 1 Division member who is a senior judicial officer; or (b) in any other case, 1 Division member who is an Australian lawyer of at least 7 years' standing. (5) The Tribunal, when constituted to exercise a function under section 146D or 148G, is to be constituted by a Division member selected by the Tribunal List Manager. (5A) The Tribunal, when constituted to make an ancillary decision or an interlocutory decision within the meaning of the Civil and Administrative Tribunal Act 2013, is to be constituted by the Tribunal List Manager or the member referred to in subsection (2) (a). (6) A person is not to be selected to sit on the Tribunal if the person is a member of the Council. (7) An inquiry or appeal conducted or heard by the Tribunal under this Law may relate to more than one health practitioner or student if the complaint or complaints the subject of the inquiry or appeal arise from the same conduct. 165C Effect of vacancy on Tribunal [NSW] (1) If one of the members (other than the presiding member) constituting the Tribunal for the purpose of conducting a hearing under this Law vacates office for any reason before an inquiry or appeal is completed or a decision is made in respect of an inquiry or appeal, the inquiry or appeal may be continued and a determination made by the remaining members of the Tribunal. (2) If more than one of the members vacate office, or the presiding member vacates office, for any reason before the Tribunal has completed an inquiry or appeal or made a determination in respect of an inquiry or appeal, the inquiry or appeal is terminated. (3) When an inquiry or appeal is terminated, the Tribunal may be reconstituted in accordance with this Division for the purposes of conducting a new inquiry or appeal in respect of the matter concerned. (4) In this section— presiding member means the member referred to in section 165B (2) (a). Which provisions about constitution and reconstitution of the Tribunal in proceedings in the Health Practitioner List apply in this case? 1. As author DC Pearce succinctly explains, any inquiry into the meaning of an Act should start with the question: "What message is the legislature trying to convey in this communication?": Pearce DC, Statutory Interpretation in Australia (10th ed, 2024) at 155. To answer that question, the Act must be read as a whole keeping in mind that the apparent scope of a provision may be limited by other provisions. Provisions must read in such a way that they will fit with one another: Ross v R [1979] HCA 29; (1979) 141 CLR 432 at 440. 2. Based on the legislative provisions I have outlined above, the message the legislature was trying to convey is clear. The Tribunal is to be constituted and reconstituted in accordance with any applicable requirements specified by or under the National Law: NCAT Act, Sch 5, cl 13. Section 165C(2) is one such requirement. It provides that when the presiding member "vacates office, for any reason before the Tribunal has completed an inquiry or appeal or made a determination in respect of an inquiry or appeal, the inquiry or appeal is terminated". 3. The application of s 165C(2) of the National Law to the circumstances of this case does not depend on reconciling conflicting provisions and determining which of two conflicting provisions is paramount. Clause 13 of Schedule 5 is a direction to the Tribunal to comply with such requirements when exercising a Division function in proceedings that are entered in the Health Practitioner List. 4. When there is no equivalent direction to that in clause 13 of Schedule 5, the Tribunal may have to determine which of two conflicting provisions is paramount. That was the task the Court of Appeal undertook in Medical Council of New South Wales v Lee [2017] NSWCA 282. At [7] Basten J explained the effect of s 35 of the NCAT Act and s 165A of the National Law: These two provisions expressly provide for the paramountcy of the National Law over the Tribunal Act. However, an express paramountcy provision will be engaged only where there is inconsistency or repugnancy between the paramount and the subordinate legislation. 1. In the same case at Sackville JA held at [88] that: The inconsistency might take the form of a direct conflict between two provisions (for example, where both cannot be obeyed simultaneously). There will also be an inconsistency in the relevant sense if, as a matter of construction, the National Law [NSW] is intended to operate in relation to a particular matter to the exclusion of s 43(3) of the NCAT Act. 1. At [96] Sackville JA concluded that: The National Law should be construed as dealing exhaustively with the circumstances in which a decision by the Council to suspend a medical practitioner can be stayed, terminated or waived. In coming to that view, the Court noted that s 43(3) is in Part 4 of the NCAT Act. By virtue of s 35, that sub-section is "subject to" the National Law. 1. Although there is no need to determine which of two conflicting provisions is paramount, for the following reasons s 52 and clause 8(1)(b) of Schedule 2 to the NCAT Act are inconsistent with s 165C(2) of the National Law and s 165C(2) prevails. 2. Under s 165A of the National Law, when exercising a function in proceedings entered in the Health Practitioner List, the requirement in s 165C(2) applies despite anything to the contrary in the NCAT Act. Section 35 of the NCAT Act is "mirror image" of s 165A of the National Law: Medical Council of New South Wales v Lee [2017] NSWCA 282 at [6]. 3. There is a direct conflict between s 165C(2) of the National Law and two provisions of the NCAT Act: 52(1)(b) and Clause 8(1)(b) of Schedule 2. 4. Section 52(1)(b) allows the President to replace a member, after the consideration of a matter has commenced but before it is determined, in circumstances where the members ceases to be a member. That provision is wholly inconsistent with the requirement in s 165C(2) of the National Law because rather than the expiration of the presiding member's term of office terminating the inquiry, the member may be replaced in some circumstances. 5. Clause 8(1)(b) of Schedule 2 to the NCAT Act allows a member who ceases to be a member because of the expiration of the period of the member's appointment, to complete unfinished matters. As with s 52(1)(b) that provision is wholly inconsistent with the requirement in s 165C(2) of the National Law because rather than the expiration of the presiding member's term of office terminating the inquiry, the member may complete unfinished matters in some circumstances. 6. In Health Care Complaints Commission v Dowla [2018] NSWCATOD 96 the Tribunal was considering whether or not a reconstituted Tribunal can complete a hearing when the presiding member becomes "unavailable" during the course of the hearing. At [58], the Tribunal found that there is "a conflict or repugnancy between the provisions of the National Law and the NCAT Act concerning reconstitution of the Tribunal when a member becomes unavailable". At [55], the Tribunal concluded that s 165B and s 165C of the National Law provide a "complete code dealing with the constitution (and reconstitution) of the Tribunal." 7. The direction in clause 13 of Schedule 5 to the NCAT Act is unequivocal. The Tribunal is to be constituted and reconstituted in accordance with any applicable requirements specified by or under the National Law. One such requirement is in s 165C(2) of the National Law. In proceedings that are entered in the Health Practitioner List, the Tribunal must comply with that requirement. The question of paramountcy between that requirement and inconsistent provisions of the NCAT Act does not arise. Even if it did, s 52 and clause 8(1)(b) of Schedule 2 to the NCAT Act are inconsistent with s 165C(2) of the National Law and s 165C(2) prevails. Does the requirement in s 165C(2) apply to the facts of this case? 1. There is no dispute that Cole DCJ was the presiding member in these proceedings and that the inquiry is not complete. Those elements of s 165C(2) of the National Law are satisfied. It remains to be determined whether the presiding member has vacated office for any reason. If so, the inquiry is terminated. 2. Clause 7(1)(b) of Schedule 2 to the NCAT Act provides that the office of a member becomes vacant if the member, in the case of a term member, completes a term of office and is not re-appointed. 7 Vacancy in office of member (other than President) (1) The office of a member (other than the President) becomes vacant if the member— (a) dies, or (b) in the case of a term member—completes a term of office and is not re-appointed, or (c) in the case of an occasional member—when the proceedings in relation to which the member has been appointed as an occasional member have been finally determined for the purposes of section 11, or (d) resigns the office by written instrument addressed to the Minister, or (e) is nominated for election as a member of the Legislative Council or of the Legislative Assembly or as a member of a House of Parliament or a legislature of another State or Territory or of the Commonwealth, or (f) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or (g) becomes a mentally incapacitated person, or (h) is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more or is convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable, or (i) is removed from office under subclause (2). (2) The Governor may remove a member (other than the President) from office for incapacity, incompetence or misbehaviour. 1. In Health Care Complaints Commission v Dowla [2018] NSWCATOD 96, the Tribunal discussed the meaning of the words "vacates office" in s 165C in the context of a presiding member becoming unavailable. The Tribunal concluded at [52] that the presiding member vacates office "if he or she is unable, for any reason, to preside until the hearing is completed." 2. At the hearing, the Tribunal raised with the parties a possible interpretation of the term "vacates office" to exclude the circumstances where a member is able to complete unfinished matters under clause 8 of Schedule 2 to the NCAT Act. Parties were invited to make further submissions on this possible interpretation. 3. The Commission submits that the definition of "vacates office" in Clause 7(1)(b) of Schedule 2 is expanded or modified by Clause 8 of Schedule 2 headed "Provisions relating to Members". "Vacates office" means that the relevant member is either not available or not entitled to continue to hear the matter. Cole DCJ is entitled to continue to hear the matter because Clause 8 of Schedule 2 allows a member to complete unfinished matters in certain circumstances. Those circumstances include where a member ceases to be a member because of the expiration of the period of their appointment. 4. Dr Sathiyapal submits that the provisions of the National Law as to the constitution and reconstitution of the Tribunal provide a complete code, irrespective of any provision of the NCAT Act. 5. On its face, the description of the circumstances where the office of a member becomes vacant, in clause 7 of Schedule 2 to the NCAT Act, applies to all members of the Tribunal, whether they are exercising a Division function in proceedings in the Health Practitioner List or exercising other functions. There are no other provisions which are inconsistent with that interpretation. The meaning of the term "vacates office for any reason" in s 165C(2) of the National Law at least includes vacating office for any of the reasons listed in clause 7 of Schedule 2 to the NCAT Act. As I have said, Cole DCJ completed a 5 year term of office as a Deputy President of the Tribunal and did not seek re-appointment. 6. When exercising a Division function in proceedings in the Health Practitioner List, the Tribunal must be constituted or reconstituted in accordance with the requirements in s 165C(2). One such requirement is that when the presiding member vacates office, the proceedings are terminated. A different requirement applies to Tribunal proceedings that are not in the Health Practitioner List. Despite a member vacating office for defined reasons, that member may complete unfinished matters in certain circumstances. The inquiry is not necessarily terminated. Clause 8 of Schedule 2 does not expand the meaning of "vacates office" in s 165C(2) of the National Law; it imposes a different requirement in some circumstances. 7. It follows from these reasons that the inquiry is terminated and the Tribunal may be reconstituted in accordance with Part 8, Division 10 of the National Law, for the purpose of conducting a new inquiry in respect of this matter. 8. The Commission submits that the President of the Tribunal should appoint Cole DCJ as a member of the Tribunal for these proceedings only, under s 15(2) of the NCAT Act. 15 NSW judicial officers acting as members of Tribunal (1) Classes of NSW judicial officers who may act as members may be prescribed Any NSW judicial officer who belongs to a class of NSW judicial officer prescribed by the regulations for the purposes of this section is taken to have been duly appointed to act as a member of the Tribunal in relation to such matters within the jurisdiction of the Tribunal as are prescribed by the regulations. (2) President may appoint NSW judicial officer to act as member Without limiting subsection (1), the President may appoint any NSW judicial officer to act as a member of the Tribunal in relation to particular proceedings before the Tribunal if— (a) the President is satisfied that the appointment of the judicial officer to act as a member is necessary to enable the Tribunal to exercise its functions effectively in the proceedings, and (b) the relevant chief judicial officer agrees to the NSW judicial officer's appointment. 1. The Commission described this course as an "administrative step" which would allow the matter to proceed to what is likely to be a one day Stage 2 hearing. 2. Appointing Cole DCJ as a member of the Tribunal would not overcome the effect of s 165C(2) of the National Law which is that the proceedings are terminated by force of law when the presiding member "vacates office for any reason". The term "vacates office" includes where the presiding member completes a term of office and is not re-appointed: Cl 7(1)(b) of Sch 2 to the NCAT Act. Appointing Cole DCJ as a member now would not have the effect of her Honour being "re-appointed". Effect of termination 1. As the inquiry is terminated, the Tribunal may be reconstituted in accordance with the provisions in Division 10 of the National Law: National Law, s 165C(3). The Tribunal should be reconstituted for the purpose of conducting a new inquiry, despite the fact that Dr Sathiyapal will have to defend the proceedings again. 2. The Commission submits that the Tribunal should be reconstituted with a new presiding member and as many of the other previous members as possible. Dr Sathiyapal submits that the Tribunal needs to be re-constituted with all new members including the presiding member in accordance with s 165B(2) of the National Law. That was the course adopted by the Tribunal in similar circumstances in Health Care Complaints Commission v Dowla [2019] NSWCATOD 117 and by the Medical Tribunal in Health Care Complaints Commission v Do [2013] NSWMT 7 at [15]-[17]. 3. I am satisfied that the Tribunal should be re-constituted with four new members in accordance with s 165B of the National Law. The panel members of the terminated Tribunal proceedings have already expressed a view about the facts. Retention of any of the same members would undermine procedural fairness considerations which require that the reconstituted Tribunal conduct a new inquiry and consider the evidence afresh. 4. The manner in which that inquiry is to be conducted is a matter for the newly constituted Tribunal. Costs 1. Under Schedule 5D, clause 13 of the National Law, the Tribunal has power to require the Commission or a registered health practitioner such as Dr Sathiyapal, to pay the costs of another party. 13 Tribunal may award costs [NSW] (1) The Tribunal may order the complainant (if any), the registered health practitioner or student concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal. (2) When an order for costs has taken effect, the Tribunal is, on application by the person to whom the costs have been awarded, to issue a certificate setting out the terms of the order and stating that the order has taken effect. (3) The person in whose favour costs are awarded may file the certificate in the District Court, together with an affidavit by the person as to the amount of the costs unpaid, and the Registrar of the District Court must enter judgment for the amount unpaid together with any fees paid for filing the certificate. (3A) The Tribunal may fix the amount of costs itself or order that the amount of costs be assessed by a costs assessor under the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (4) This clause applies instead of section 60 (Costs) of the Civil and Administrative Tribunal Act 2013. 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 follow the event, that is, the successful party is entitled to their costs, unless it appears that some other order should be made. The onus is on the unsuccessful party to displace the ordinary rule. 2. The Commission sought costs of the terminated Stage 1 hearing. According to the Commission, "the administrative business of the Tribunal is not disentitling conduct on the part of the Commission". It would be "grossly unfair" to the Commission if it were not entitled to its costs. Dr Sathiyapal submits that as the need for a new inquiry is not the fault of either party, each party should pay their own costs. 3. We note that in Health Care Complaints Commission v Dowla (No 2) [2019] NSWCATOD 156, the Tribunal dealt with the question of costs after the proceedings had been finally determined. In that case the Commission did not apply for its costs in relation to the hearing days for the terminated proceedings. 4. As was the case in Health Care Complaints Commission v Dowla (No 2), it is preferable for the issue of costs to be determined by the Tribunal when the inquiry has been completed. Orders 1. Under s 165C(2) of the Health Practitioner Regulation National Law (NSW) the proceedings are terminated. 2. The Tribunal is to be reconstituted in accordance with Part 8 Division 10 of the Health Practitioner Regulation National Law (NSW) for the purposes of conducting a new inquiry. ********** 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 25 June 2024 - Coversheet - Hearing Date(s): corrected to 28 May 2024 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: 25 June 2024