Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Bechara v Nursing and Midwifery Council of New South Wales (No 2) [2019] NSWCATOD 62 Hearing dates: On the papers Date of orders: 30 April 2019 Decision date: 30 April 2019 Jurisdiction: Occupational Division Before: The Hon F Marks Principal Member Decision: The appellant is to pay the costs of the respondent in matter number 2018/00104765 fixed in the sum of $12,635.38. Catchwords: COSTS – appeal dismissed – appellant ordered to pay respondent's costs Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: Bechara v Nursing and Midwifery Council of NSW [2018] CATOD181 Category: Costs Parties: Tanya Bechara (Appellant) Nursing and Midwifery Council of New South Wales (Respondent) Representation: Solicitors: T Bechara (Self Represented)(Applicant) C M Campbell Solicitor (Respondent) File Number(s): 2018/00104765 Publication restriction: Non—publication order with respect to the name of any person who was a client of the appellant and any information which might tend to identify such a person. REASONS FOR DECISION Background 1. In Bechara v Nursing and Midwifery Council of NSW [2018] CATOD181 the Tribunal dismissed an appeal brought by the appellant Tanya Bechara from a decision of the respondent Nursing and Midwifery Council of NSW to suspend her registration as an enrolled nurse. 2. The Tribunal as then constituted reserved costs. The respondent has exercised the liberty to apply granted by the Tribunal and has made application for a costs order against the appellant in its favour. 3. The Tribunal as currently constituted is empowered by section 165 B of the Health Practitioner Regulation National Law (NSW) ("the National Law") to deal with this costs application. The statutory basis for the costs application 1. Schedule 5 D, clause 13 of the National Law provides for the awarding of costs in proceedings brought before this Tribunal under that legislation. It is in the following terms; 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. It is well-established that this power to award costs creates a costs jurisdiction such that costs normally follow the event. The only exceptions apply where there is some disentitling conduct on the part of the successful party or other relevant circumstances which might dictate a different result, either partially or totally. Accordingly, I approach this application on the basis that prima facie, the respondent having been successful in the proceedings, is entitled to a costs order in its favour. Consideration 1. It is quite clear that in the substantive proceedings the Tribunal formed the view that the appeal was without merit. 2. Although invited to make submissions about the respondent's costs application, the appellant did not do so. Even in the absence of any submissions from the appellant it is quite clear from a perusal of the reasons for decision in the substantive proceedings that the respondent did not conduct itself in any manner that would disentitle it to a favourable costs order. Nor is there any feature of those substantive proceedings which would militate against making such a costs order. 3. In all the circumstances it is appropriate that the appellant pay the respondent's costs of the substantive proceedings. 4. The respondent sought an order that the costs order in its favour be for a fixed amount, namely $12,635.38. Those costs are made up predominantly of fees charged by external counsel retained to represent the respondent in the proceedings, the balance being for transcription fees, photocopying and assembling a large amount of documents. The respondent does not seek to recover costs incurred by its solicitor who is employed internally by it. 5. I have perused the itemised accounts of counsel's fees and the remaining disbursements. Counsel has itemised his fees in detail. Prima facie they reflect work properly and appropriately undertaken in connection with the preparation of the matter for hearing and the conduct of the hearing, and prima facie they reflect a reasonable charge out rate. 6. Given the relatively small quantum of the costs claimed by the respondent with respect to a hearing that extended over two days I am of the opinion that it is appropriate to fix costs in the amount claimed by the respondent, and thereby avoid the delay and further costs incurred in undertaking an assessment process. I shall so order. Order 1. The appellant is to pay the costs of the respondent in matter number 2018/00104765 fixed in the sum of $12,635.38. ********** 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: 30 April 2019