Health Care Complaints Commission v Noor (No 2) [2020] NSWCATOD 9

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Noor (No 2) [2020] NSWCATOD 9 Hearing dates: On the papers Date of orders: 29 January 2020 Decision date: 29 January 2020 Jurisdiction: Occupational Division Before: Cole DCJ, Deputy President Dr N Harris, Senior Member Dr G Yeo, Senior Member Honorary Associate Professor P Macneill, General Member Decision: (1) The respondent is to pay the applicant's costs of these proceedings, to be agreed or assessed. Catchwords: PROFESSIONS AND TRADES – health care professionals – medical practitioners – disciplinary action - costs Category: Costs Parties: Health Care Complaints Commission (Applicant) Irfan Noor (Respondent) Representation: Counsel: S Maybury (Applicant) M Gerace (Respondent)

Solicitors: Health Care Complaints Commission (Applicant) Avant Law (Respondent) File Number(s): 2019/00051135 Publication restriction: The publication of the name of the practitioner's wife is prohibited.

REASONS FOR DECISION 1. The Tribunal's decision in relation to the disciplinary proceedings brought against Dr Noor by the Health Care Complaints Commission ('the HCCC') was published on 8 November 2019. 2. The Tribunal allowed 21 days for the lodgement of an application for costs. An application for costs was received by the Tribunal from the HCCC on 27 November 2019. 3. The Tribunal allowed 14 days from the date of the receipt of an application for costs within which a response to that application could be filed. Dr Noor was provided with a copy of the application for costs on 27 November 2019, but did not submit a response. 4. Apart from one sub-particular in the complaint, the HCCC was wholly successful in the proceedings. It does not seem to us that the legal work performed in relation to the matter for the HCCC would have been any less had that sub-particular not been included in the complaint. 5. The HCCC sought to have the Tribunal fix a period during which Dr Noor would be prevented from seeking re-registration. Such a period was not fixed. Again, we do not consider that this issue had an impact on the legal costs. 6. In its written submissions, the HCCC argued: 5. Under Schedule 3D, clause 13 of the National Law, the Tribunal has the power to require the Commission, a registered health practitioner or any other person entitled to appear before the Tribunal to pay the costs of another party, where so decided by the Tribunal. 6. It is commonly held that costs will follow the event (HCCC v Dinakar [2009] NSWMT 8; HCCC v Dr Mazzaferro [2011] NSWMT 9 at [67]). 7. In HCCC v Dr Mazzaferro, the Tribunal affirmed the principles governing the award of costs by reference to the High Court's comments in Latoudis v Casey (1990) 170 CLR 534. Indeed, at 543, Mason CJ set out that costs are not "awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which they have been put by reason of the legal proceedings". The Tribunal in Mazzaferro also noted (at [69]) that the Court of Appeal has held that the principles in Latoudis v Casey "should be applied by all Tribunals such as the Medical Tribunal" (see Ohn v Walton (1995) 36 NSWLR 77). 8. In Health Care Complaints Commission v Dr Perroux (No 2) [2011] NSWMT 15 at [10], affirmed in Barratt v Medical Board of Australia [2012] NSWMT 22 at [180], held that a respondent's impecuniosity "is generally no reason to deny a successful complainant a favourable costs order". 9. Accordingly, not only is the onus on the losing party to establish a basis for any departure from the usual rule Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111 at [10]; NSW v Stanley [2007] NSWCA 330 at [24]) but, given an order for costs operates to compensate the successful party, this general presumption will only be displaced where there has been some sort of disentitling conduct on the part of the successful party (Arian v Nguyen [2001] NSWCA 5 at [36]). 10. The Applicant was successful in the proceedings. The Applicant submits that there has been no disentitling conduct on its part, the proceedings having been brought properly and prosecuted efficiently. The usual rule should be followed. The Respondent should be ordered to pay the Applicant's costs of these proceedings 1. The HCCC has accurately set out the applicable law. The HCCC is entitled to an order for costs in its favour.