Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Choi (No 2) [2017] NSWCATOD 91 Hearing dates: On the papers Date of orders: 15 June 2017 Decision date: 15 June 2017 Jurisdiction: Occupational Division Before: R Titterton, Senior Member G Wynn, Professional Member M Mison, Professional member F Taylor, General Member Decision: The respondent is to pay the Complainant's costs as agreed or as assessed Catchwords: Costs - no question of principle Legislation Cited: Civil and Administrative Tribunal Act 2013 Health Care Complaints Act 1993 Health Practitioner Regulation National Law (NSW) No 86a Cases Cited: Health Care Complaints Commission v Choi [2017] NSWCATOD 82 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Lucire v Health Care Complaints Commission (No 2) [20111 NSWCA 182 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Singh v Medical Council of NSW (No 2) [2015] NSWGATOD 28 Category: Costs Parties: Health Care Complaints Commission (Complainant) Dr Dong Won Choi (Respondent) Representation: Counsel: Ms A Petrie (Complainant) Solicitors: Health Care Complaints Commission (Complainant) Dr Choi represented himself File Number(s): 2016/00378634, 1620071 Publication restriction: The Tribunal makes a non-publication order in accordance with cl 7(1)(b)(iii) of Schedule 5D of the Health Practitioner Regulation National Law (NSW) No 86a in respect of the name of Patient A, Patient A's boyfriend, any patient who provided a statement to the police which was relied on in the criminal prosecution of the respondent, and any work colleague of Patient A. REASONS FOR DECISION 1. By an Application for Disciplinary Findings and Orders dated 17 March 2016, the Complainant, Health Care Complaints Commission (the Commission) sought orders in relation to the following complaints where: 1. The respondent has been convicted of criminal offences in the State of New South Wales (Complaint One); 2. The respondent is guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(b) of Health Practitioner Regulation National Law (NSW) No 86a (the National Law) (Complaint Two); 3. The respondent is guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(l) of the National Law (Complaint Three); 4. The respondent the guilty of professional misconduct within the meaning of s 139E of the National Law (Complaint Four); 5. The respondent is not a suitable person to hold registration as a chiropractor (Complaint Five). 1. In written reasons published on 28 April 2017 (Health Care Complaints Commission v Choi [2017] NSWCATOD 82), the Tribunal found the complaints proven, cancelled the respondent's registration, prohibited the respondent from providing any health service as defined by s 4 of the Health Care Complaints Act 1993 (NSW) whether public, private or volunteer services, and ordered that the respondent was not to apply for a review of the orders made for a period of five years. 2. In its written submissions relied on at the hearing, the Commission submitted that The Commission submitted that the respondent should be ordered to pay its costs. The Commission relied on cl 13 of Sch 5D of the National Law which states: The Tribunal may award costs (1) A 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." 1. The Commission also relied on the decision of the Court of Appeal in Health Care Complaints Commission v Philipiah [2013] NSWCA 342. 2. At pars [80] and [81] of the reasons for decision, the Tribunal: 1. Stated that, as a general rule, costs of proceedings before the Tribunal should follow the event: Philipiah [2013] NSWCA 342; and 2. Noted that, as the Commission had been entirely successful, it proposed that the respondent should pay its costs of the proceedings. 1. Both parties were granted leave to file submissions on costs within 14 days, and could reply within a further 14 days. 2. As at the time of preparing these reasons, no submissions as to costs have been received from the respondent. The Tribunal notes that the respondent filed submissions on 2 March 2015 dealing with the complaints. At the conclusion of those submissions the respondent stated: The respondent has been experiencing harsh financial time due to the restricted work and no-work from the end of 2011, he served 18 month in custard period and is looking for code of appeal. The respondent ask tribunal members to release his suspension so, he can work and recover from this situation and serve community, soon. 1. We consider that the appropriate order is that the respondent pay the Commission's costs, as agreed or as assessed. We have come to the conclusion for the following reasons: 1. The Tribunal has a discretionary power to make an order for costs under cl 13 of Schedule 5D of the Health Practitioner Regulation National Law (NSW) (National Law). 2. In applying the provisions of cl 13, the general rule is that costs follow the event and that costs are intended to compensate the successful party, absent any disentitling conduct: Philipiah [2013] NSWCA 342 at [42]; Lucire v Health Care Complaints Commission (No 2) [20111 NSWCA 182: Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [87]; Singh v Medical Council of NSW (No 2) [2015] NSWGATOD 28 at [45]. 3. In the exercise of that discretion, the Tribunal may, pursuant to s 60(4)(a) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) determine by whom the costs should be paid, and to what extent. 1. As at the time of preparing these reasons, no submissions had been received dealing with costs from the respondent. Nor had any request been made for an extension of time in which to file submissions on costs. There were no materials before the Tribunal from the respondent suggesting any reason why he should not be ordered to pay the Council's costs. 2. In the circumstances, and given the authorities binding the Tribunal sitting in this Division, the Tribunal considers that the respondent should pay the Council's costs. Order 1. The order of the Tribunal is that the respondent is to pay the Complainant's costs as agreed or as assessed. ******** 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 16 June 2017 - No amendments made. Opened in error. 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: 16 June 2017