Cameron v Nursing & Midwifery Council of NSW (No 2)

Category: Costs

Parties: Therese Cameron (Applicant)
Nursing and Midwifery Council of NSW (Respondent)

Representation: Solicitors:
Applicant (Self-represented)
Nursing and Midwifery Council of NSW (Respondent)

File Number(s): 2025/00161623

REASONS FOR DECISION

Introduction

1. This external appeal concerned miscellaneous applications by the appellant for the Occupational Division of the Civil and Administrative Tribunal (Tribunal) to direct the Registry to issue summonses to each of Mr Ian Reid, Ms Jodie Miller, Ms Wendy Gleeson and Mr Brad Astill.

2. For reasons published on 5 September 2025, after a hearing on 27 August 2025, those applications were dismissed: Cameron v Nursing and Midwifery Council of NSW [2025] NSWCATOD 122 (Primary Decision).

3. My orders included a timetable for submissions as to costs to be filed by both parties.

4. Only the appellant filed submissions.

5. For the following reasons, I have decided to order the appellant to pay the respondent’s costs in the sum of $5,000.00.

6. These reasons assume a knowledge of the Primary Decision.

Preliminary issue

7. Neither party opposed me determining costs on the papers. As I am satisfied that the issue of costs can be adequately determined in the absence of the parties by considering their written submissions, I dispense with a hearing: see s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).

Respondent’s submissions

8. The respondent Council seeks its costs of the appellant’s unsuccessful applications.

9. In summary, the Council submits that:

10. pursuant to cl 13(1) of Sch 5D of the Health Practitioners Regulation National Law (NSW) (National Law) may order a party to proceedings to pay the costs of another party to the proceedings;

11. this is a costs jurisdiction, and costs normally “follow the event”: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 (Philipiah); Health Care Complaints Commission v Marino (No 2) [2016] NSWCATOD 75;

12. the appellant was wholly unsuccessful in her applications, and there is no basis to depart from the general rule that costs follow the event.

13. If those submissions are accepted, the Council seeks an order for the payment of a gross sum of costs of $5,000. In this respect, the Council relies on the affidavit of Ms Elise McHugh affirmed 18 September 2025. Ms McHugh is a Principal Legal Officer employed by the Health Professional Councils Authority. Ms McHugh says that the amount of $5,000 is less than the Council’s actual costs, and is a reasonable and proportionate sum.

Issues to be determined

11. The following issues fall to be determined. I state a summary of my conclusions in italics.

12. What is the relevant costs rule? The relevant costs rule is found in cl 13(1) of Sch 5D of the National Law.

13. Is the respondent entitled to costs? Yes.

14. If so, should costs be awarded? Yes.

15. If so, should the Tribunal make a gross sum costs order in the amount of $5,000.00. Yes.

What is the relevant costs rule?

12. The Council correctly submits that the relevant costs rule is found in cl 13(1) of Sch 5D of the National Law.

13. The Council also correctly submits that that it is well-established that that rule means that costs “follow the event”.

14. In Health Care Complaints Commission v Livermore [2021] NSWCATOD 115 the Tribunal stated at [19]:

“The authorities are clear on this issue. 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: [Health Care Complaints Commission v] 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] NSWCATOD 28 at [45].”

15. As Meagher JA stated in Qasim v Health Care Complaints Commission [2015] NSWCA 282 (Qasim), McColl and Ward JJA agreeing) at [84]-[85]:

“84 Clause 13 in Sch 5D of the National Law relevantly provides:

(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.

85 In Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [46] - [48] this court (Basten JA, McColl JA and Sackville AJA agreeing), following Ohn v Walton (1995) 36 NSWLR 77, held that a power in substantially the same terms was to be exercised for the purpose of indemnifying or compensating the person in whose favour a costs order was to be made, and not for the purpose of punishing the person against whom it is made. That being so, ordinarily costs should follow the event unless there are reasons to conclude otherwise. Lucire was followed in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42].”

(emphasis added)

16. In Philipiah at [42]-[44], Emmett JA (Meagher JA and Beech-Jones J agreeing) stated:

“42 As a general rule, costs of proceedings before the Tribunal should follow the event …However, there are factors that might militate against the recovery by the Commission of all of its costs in particular proceedings. For example, one factor might be that the Commission failed to obtain findings of professional misconduct alleged, even though it obtained findings of unsatisfactory professional conduct. Another factor might be that the Commission failed to establish all of the particulars of professional misconduct alleged. Where discrete elements of the conduct complained of are not established, that may be relevant. A third factor might be oppressive conduct by the Commission in the way in which it prosecuted the proceedings before the Tribunal, such as taking procedural steps that gave rise to unnecessary expense in preparing for the hearing (see Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48] - [52]). …

43 As the Tribunal observed in its reasons, the question of costs is discretionary. However, the discretion is a judicial one and must be exercised according to proper fixed principles and rules of reason and justice, not according to private opinion. While it is not easy to state the precise principles that are to guide a court in exercising the discretion over costs, the discretion is only to be exercised where there are materials upon which to exercise it (Williams v Lewer (1974) 2 NSWLR 91 at 95).

44 It is important when exercising the discretion to bear in mind that costs are intended to compensate a successful party. Costs are not intended to penalise an unsuccessful party. It is not an appropriate basis for the exercise of the discretion that an order for costs may cause hardship to the party against whom the order is made.”

(emphasis added)

17. Applying those principles, the starting point is that the Council was the successful party, and the appellant was entirely unsuccessful in her applications.

18. As I noted at [91](1) of the Primary Decision, this is a costs jurisdiction and, that absent disentitling conduct, the Council is entitled to its costs: see Philipiah at [42]; Qasim at [85]; and Health Care Complaints Commission v Vorillas (No 4) [2025] NSWCATOD 87 at [18].

Is the respondent entitled to costs?

19. As the Appeal Panel noted in Sader v Renbar Construction Pty Ltd (No 2) [2026] NSWCATAP 150 at [127], the Appeal Panel stated in Beecraft Pty Ltd v Tudor; Tudor v Beecraft Pty Ltd [2021] NSWCATCD 119 that:

“127 When … there is a general discretion to award costs … it is well established, by decisions such as News v Cotes [2019] NSWCATAP 186, Bonita v Shen [2016] NSWCATAP 159 and Thompson v Chapman [2016] NSWCATAP 6, that: (1) the starting point is that the usual order for costs should be in favour of the successful party, (2) the award is not to punish the unsuccessful party but to compensate the successful party for the costs incurred in the proceedings, and (3) departure from the usual order is permissible if the circumstances favour that course of action.

128 …the successful party can be said to have a reasonable expectation of being awarded costs.”

(emphasis added)

20. Those observations were made in an appeal where the relevant costs rules were those found in rr 38 and 38A of the Civil and Administrative Tribunal Rules 2014 (NSW) but I see no reason why the same principles do not apply in this matter.

If so, should costs be awarded?

21. The discretion to award costs is to be exercised judicially: see Lucantonio v Kleinert [2009] NSWCA 314, where the Court of Appeal confirmed that a costs discretion must still be exercised judicially having regard to all relevant circumstances.

22. As the Appeal Panel noted in Bien v Superior Strata Pty Ltd [2026] NSWCATAP 219, in Sader v Renbar Construction Pty Ltd (No 2) [2026] NSWCATAP 150 the Appeal Panel observed at [32] that in Lirantzis v Calligas [2026] NSWCATAP 52, the principles regarding costs were set out in the Appeal Panel decision in Thompson v Chapman [2016] NSWCATAP 6 to the following effect:

23. the starting point in exercising such discretion is that the “usual order for costs” is that a successful party should be entitled to an order for costs in their favour;

24. the reason for an order for costs being made is that it is considered to be appropriate for the party who incurred costs caused by the other party in litigation to be reimbursed. An award of costs is of indemnity to the successful party and not as a punishment to the unsuccessful party;

25. the factors to be considered in awarding costs in a particular case are not confined by way as to do so would constrain the general discretion. However, factors that might influence whether the usual order for costs should apply include whether, by reason of the relative success of the parties on different issues and the time taken to determine those, that an order for costs based on issues should be made. Another factor might be whether by reason of the nature of the proceedings, the usual rule should otherwise be displaced in whole or in part.

26. Applying those principles, I consider that the Council has established the basis for an award of costs.

Should the Tribunal make a gross sum costs order in the amount of $5,000

24. If costs are to be awarded by the Tribunal, the Tribunal may determine by whom and to what extent costs are to be paid, and the basis on which the costs are to be assessed.

25. In order to avoid further costs, the Tribunal has frequently made gross costs or lump sum orders. And, as the Tribunal noted in Health Care Complaints Commission v Solari (No 2) [2025] NSWCATOD 148 (Solari) at [11], in Manariti Plumbing Pty Ltd v Universal Property Group Pty Ltd (No 2) [2025] NSWCA 185 (Manariti) at [30]-[38] (Free JA with McHugh JA at [1] and Ball JA at [2] agreeing), summarised the relevant principles governing an application for a gross sum costs order as follows:

“[30] In Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 (Harrison v Schipp) at [21] Giles JA described the power to make a gross sum costs order instead of ordering assessed costs, conferred at that time by Pt 52A r 6(2)(c) of the Supreme Court Rules 1970 (NSW), as being unconfined and apt to be exercised whenever the circumstances warrant its exercise. The same approach applies to s 98(4) of the Civil Procedure Act: Hamod v State of New South Wales [2011] NSWCA 375 (Hamod) at [813].

[31] One of the circumstances that has been recognised as potentially warranting the making of a gross sum costs order is where the assessment of costs would be protracted and expensive, and in particular if it appears that the party obliged to pay the costs would not be able to meet a liability to pay the order likely to result from the assessment: Harrison v Schipp at [21]. That was the situation in Harrison v Schipp, where at [30] Giles JA found that Mrs Schipp ‘should not have to spend a lot more money which she will not recover’ in order to obtain the costs payable to her.

[32] Even where the element of impecuniosity is not present, the length and/or complexity of the underlying proceedings and the associated likelihood of a lengthy and complex assessment are material considerations that can favour a gross sum costs order. A contested costs assessment in a matter with these characteristics is likely to involve expense, delay and aggravation of the kind that it is desirable to avoid by making a gross sum costs order: Hamod at [817]. Where there is a lack of proportionality between the complexity and cost of the assessment process and the amount at stake, that is also a factor favouring the making of a gross sum order: Zepinic v Chateau Constructions (Aust) Ltd (No 2) [2014] NSWCA 99 (Zepinic v Chateau Constructions) at [28], [31]. A related circumstance warranting such an order is where the total costs of litigation will become even more disproportionate if the costs are referred for assessment: Bechara (t/as Bechara and Company) v Bates [2016] NSWCA 294 (Bechara v Bates) at [18].

[33] In Hamod at [816] the Court held that in determining whether the sum sought is appropriate and meets these standards, factors that merit particular consideration include the relative responsibility of the parties for the costs incurred, the degree of any disproportion between the issue litigated and the costs claimed, the complexity of proceedings in relation to their costs and the capacity of the unsuccessful party to satisfy any costs liability.

[34] A court entertaining an application for a gross sum costs order is not required to undertake a detailed examination of the kind that would be appropriate to a taxation or formal costs assessment: Hamod at [819], [823]. To require something akin to a formal costs assessment would defeat the purpose of the gross sum costs order: Bechara v Bates at [14].

[35] A corollary of that principle is that a broad brush approach is necessarily required: Bechara v Bates at [14]; Zepinic v Chateau Constructions at [31]. In Harrison v Schipp at [22] Giles JA referred with approval to the proposition that a gross sum ‘can only be fixed broadly having regard to the information before the Court’ (quoting Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 (Beach Petroleum) at 124) and that the rule contemplates a court adopting a ‘much broader brush than would be applied on taxation’: Hadid v Lenfest Communications Inc [2000] FCA 628 at [35].

[36] At the same time, as Giles JA emphasised in the same passage in Harrison v Schipp at [22], the approach taken to estimating costs must be ‘logical, fair and reasonable’ and the power should be exercised ‘only when the Court considers that it can do so fairly between the parties, and that includes sufficient confidence in arriving at an appropriate sum on the materials available’: citing Beach Petroleum at 123 and Wentworth v Wentworth (Court of Appeal, 21 February 1996, unreported). The need for the Court to have confidence in arriving at an appropriate sum was emphasised in Colquhoun v District Court of New South Wales (No 2) [2015] NSWCA 54 at [6], where the deficiencies in the material in that regard were decisive.

[37] In Baychek v Baychek [2010] NSWSC 987 at [11] Ball J referred to the principle that the Court is entitled to take a broad brush approach provided that the approach is logical, fair and reasonable, and observed that it is implicit in this that the gross sum ‘bear a reasonable relationship to the actual costs of the party making the application, and to the costs that that party might reasonably be expected to recover on assessment. That means, among other things, that there must be a reasonable evidentiary basis for the order the court makes’. To similar effect, in Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2011] NSWSC 11, Barrett J at [21] held that a decision as to what is a sufficiently reliable calculation or estimate of an appropriate costs sum ‘will depend to a large extent on reaching some kind of view of what the outcome on assessment might be’.

[38] As a matter of practice, courts typically apply a discount in assessing costs on a gross sum basis: Hamod at [814]. Indeed, in Zepinic v Chateau Constructions at [38] the Court described this as the invariable practice of the courts when calculating a gross sum costs order. That may involve ‘an impressionistic discount of the costs actually incurred or estimated, in order to take into account the contingencies that would be relevant in any formal costs assessment’: Hamod at [820]. Such an approach tends to minimise the risk of a gross sum costs order creating unfairness by allowing for the recovery of costs in excess of the amount that would in fact have been recovered if the matter had proceeded to costs assessment.”

26. In Solari, at [12], the Tribunal also noted that in Salmon v Albarran (No 2) [2025] NSWCA 115 at [28]-[29] (Ward ACJ; Leeming and Ball JJA), in assessing the amount of a gross sum costs order, the Court of Appeal applied discounts of 25% and 10% to professional costs and disbursements respectively reflecting that the assessment of party/party costs is less than a full indemnity.

27. I am satisfied that the affidavit of Ms McHugh provides a proper basis for making a gross sum costs order in the amount sought.

Orders

28. The Tribunal orders that:

29. On or before 20 August 2026, the appellant is to pay the respondent the sum of $5,000.000 in respect of its costs of the proceedings.

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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