Vivaldi v Dental Board of Australia [2018] NSWCATOD 159

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Vivaldi v Dental Board of Australia [2018] NSWCATOD 159 Hearing dates: 11 July 2018 Date of orders: 20 September 2018 Decision date: 20 September 2018 Jurisdiction: Occupational Division Before: A Britton, Principal Member Decision: Dr Vivaldi is to pay the costs incurred by the Dental Board of Australia, as agreed or assessed . Catchwords: COSTS – exercise of the discretion to award costs where appellant withdraws appeal Legislation Cited: Health Practitioner Regulation National Law (NSW) Racial Discrimination Act 1975 (Cth) Equal Opportunity Act 2010 (Vic) Civil and Administrative Tribunal Act 2013 (NSW) Category: Costs Parties: Gustavo Vivaldi (Appellant) Dental Board of Australia (Respondent) Representation: Counsel: K Young (Respondent) Solicitors: DLA Piper (Appellant) Minter Ellison (Respondent) File Number(s): 2017/00286881 Publication restriction: Nil

REASONS FOR DECISION 1. Gustavo Vivaldi practised as an orthodontist in Brazil for over a decade before migrating to Australia in 2013. In 2003, he completed a Master's degree in Orthodontics at the Associação Maringaense de Odontologia, a tertiary institution in Brazil. 2. Since July 2015, he has held registration as a dental practitioner in Australia. In July 2016, Dr Vivaldi applied to the Dental Board of Australia (the Board), for specialist registration in the field of Orthodontics. The Board decided to refuse to grant that application. In September 2017, Dr Vivaldi exercised his right to appeal that decision to the NSW Civil and Administrative Tribunal (NCAT). 3. The appeal was listed for hearing before NCAT on 11 and 12 July 2018. On 6 July 2018 Dr Vivaldi informed the Tribunal of his decision to withdraw the appeal and proposed that each party should bear their own costs. The Board refused and asserted that Dr Vivaldi is liable for its costs of the appeal. Being unable to reach agreement the parties requested the Tribunal to determine the issue of costs. For the reasons that follow, I have decided to order Dr Vivaldi to pay the Board's costs.