Health Care Complaints Commission v Ake [2018] NSWSC 1170

Supreme Court New South Wales

Medium Neutral Citation: Health Care Complaints Commission v Ake [2018] NSWSC 1170 Hearing dates: 19 July 2018 Date of orders: 19 July 2018 Decision date: 19 July 2018 Jurisdiction: Common Law Before: Fagan J Decision: 1. Leave to appeal is granted. 2. The appeal is upheld. 3. Order 3 made by the Civil and Administrative Appeals Tribunal on 5 January 2018 is set aside. 4. In lieu thereof, the defendant is to pay half the plaintiff's costs of the inquiry in the Tribunal. 5. The parties are to bear their own costs of the appeal on this summons. Catchwords: ADMINISTRATIVE LAW – judicial review – Civil and Administrative Tribunal (NSW) – appeal against costs order – where defendant nurse found guilty of unsatisfactory professional conduct and professional misconduct and deregistered – where some particulars of alleged conduct not made out – where plaintiff made application for costs – where parties ordered to bear their own costs – whether sufficient reasons given – whether Tribunal applied incorrect principles – whether procedural fairness denied – whether decision unreasonable or affected by latent error – leave to appeal granted and appeal upheld

COSTS – party/party – exceptions to general rule that costs follow the event – administrative tribunals – Civil and Administrative Tribunal (NSW) – where parties ordered to bear their own costs – where plaintiff successful in proceedings for unsatisfactory professional conduct and professional misconduct – where some particulars not established – certain submissions as to costs not made before Tribunal – whether deviation from general rule unreasonable – defendant ordered to pay half of plaintiff's costs Legislation Cited: Civil and Administrative Appeals Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: Be Financial Pty Ltd v Das [2012] NSWCA 164 Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69 Health Care Complaints Commission v Ake [2018] NSWCATOD 7 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 House v The King (1936) 55 CLR 499; [1936] HCA 40 Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 The Age Co Ltd v Liu [2013] NSWCA 26 Category: Principal judgment Parties: Health Care Complaints Commission (plaintiff) Merelita Ake (defendant) Representation: Counsel: Mr Anthony Britt (plaintiff) Ms Larissa Andelman (defendant)