Health Care Complaints Commission v Nulty

Catchwords: HEALTH — professional discipline — pharmacist — conduct significantly below the standard reasonably expected – unsatisfactory professional conduct – professional misconduct – appropriate protective orders – reprimand - conditions
COSTS – discretion – no disentitling conduct

Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW)
Health Practitioner Regulation National Law (NSW)
Poisons and Therapeutic Goods Act 1966 (NSW)
Poisons and Therapeutic Goods Regulation 2008 (NSW)

Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Gautam v Health Care Complaints Commission [2021] NSWCA 85
Health Care Complaints Commission v Achurch (No 3) [2019] NSWCATOD 138
Health Care Complaints Commission v Balafas (No 2) [2021] NSWCATOD 175
Health Care Complaints Commission v Do [2014] NSWCA 307
Health Care Complaints Commission v Khalighimonfared (No 2) [2022] NSWCATOD 101
Health Care Complaints Commission v McAlpine [2022] NSWCATOD 92
Health Care Complaints Commission v Perera [2018] NSWCATOD 112
Health Care Complaints Commission v Philipiah [2013] NSWCA 342
Health Care Complaints Commission v Sammy [2026] NSWCATOD 99
Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182

Texts Cited: None cited

Category: Principal judgment

Parties: Health Care Complaints Commission (Applicant)
Mark Andrew Nulty (Respondent)

Representation: Counsel:
S Sharma (Applicant)
Dr P Dwyer SC (Respondent)
Solicitors:
Health Care Complaints Commission (Applicant)
Meridian Lawyers (Respondent)

File Number(s): 2026/0065465

Publication restriction: The disclosure of the names of persons listed in the Schedule to the Complaint is prohibited pursuant to s 64 of the Civil and Administrative Tribunal Act 2013.

REASONS FOR DECISION

1. By amended application lodged 14 September 2026 the Health Care Complaints Commission (HCCC) has referred three complaints to the Tribunal for disciplinary findings and orders under the Health Practitioner Regulation National Law (NSW) (National Law) against Mark Andrew Nulty, the Respondent.

2. Mr Nulty has held general registration as a pharmacist since 21 June 1978.

3. Two complaints against Mr Nulty are that he is guilty of unsatisfactory professional conduct under section 139B(1)(a) of the National Law in that he engaged in conduct in respect of destruction, dispense, supply and record keeping of drugs, including Schedule 8 drugs, that is significantly below the reasonably expected standard of a pharmacist with his training and experience.

4. A further complaint against Mr Nulty is that he is guilty of professional misconduct under section 139E of the National Law as a result of the conduct the subject of the two unsatisfactory professional conduct complaints.

5. The HCCC seeks that Mr Nulty be reprimanded under s 149A(1) of the National Law.

6. In these reasons the Applicant is referred to as the Applicant or the HCCC and the Respondent is referred to as Mr Nulty, the Respondent, or the practitioner.

Material before the Tribunal

7. The original and amended applications for disciplinary findings and orders were before the Tribunal in the proceedings. The HCCC also provided to Mr Nulty and the Tribunal: a 2170 page bundle of documents lodged 22 July 2026, an evidentiary certificate dated 16 September 2026, a certificate of registration status dated 25 March 2026, written submissions lodged 14 September 2026 and written submissions in reply as to costs lodged 24 September 2026.

8. Mr Nulty provided to the HCCC and the Tribunal a 440 page bundle of documents lodged 24 August 2026 and two written submissions lodged 21 September 2026.

9. At the hearing on 28 September 2026, a combined Stage 1 and 2 hearing, both parties made oral submissions.

Procedural matters

10. The HCCC lodged the original application for disciplinary orders on 16 February 2026. The original application was made on the basis of an attached “Complaint” comprising three complaints, the first complaint included conduct in respect of five patients. The orders sought in the original application included cancellation of Mr Nulty’s registration as a pharmacist with a non-review period of six months.

11. The HCCC lodged an amended Complaint on 19 August 2026 (the amended Complaint) comprising the same three complaints, the first complaint included conduct in respect of three patients rather than five and one further fewer particular.

12. Mr Nulty lodged a written Reply on 24 August 2026 admitting to all the particulars of the three complaints specified in the amended Complaint of 19 August 2026.

13. On 14 September 2026 the HCCC lodged an amended application for disciplinary orders seeking an order for a reprimand instead of cancellation of Mr Nulty’s registration, as well as orders for costs and confidentiality.

Nature of the proceedings

14. The HCCC bears the onus of proof of the complaints: Gautam v Health Care Complaints Commission [2021] NSWCA 85 at [3]. The standard of proof in disciplinary proceedings is on the balance of probabilities with a sufficient degree of certainty having regard to the seriousness of the allegations made: see Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34; Health Care Complaints Commission v McAlpine [2022] NSWCATOD 92 at [24].

15. The Tribunal may exercise disciplinary powers under the National Law if (a) it finds the subject-matter of a complaint to have been proved, or (b) the Respondent admits to it in writing to the Tribunal: s 149 of the National Law.

16. The Tribunal must first determine the issue of whether the allegations in the complaints have been proven to the required standard. If the complaints are proven the Tribunal is then required to consider and determine, what, if any, protective orders are appropriate.

The Complaint

17. The amended Complaint sets out the following background to the three complaints made against Mr Nulty:

“In 1976 the practitioner completed a Bachelor of Pharmacy at the Victorian College of Pharmacy and was first registered as a pharmacist on 21 June 1978.

At the relevant time, the practitioner was employed as a pharmacist at Meninya Street Pharmacy in Moama NSW. At the relevant time, Meninya Street Pharmacy serviced Southern Cross Care (also known as Moama Residential Aged Care).

The drugs identified in Schedules B to G are in the following categories:

• substances within the meaning of the Poisons and Therapeutic Goods Act 1966 (NSW) (PTGA), which are prescription only medicines contained in Schedule 4 of the Poisons Standard (Schedule 4 drugs);

• prescribed restricted substances within the meaning of the PTGR, being drugs contained in Appendix D of the Poisons and Therapeutic Goods Regulation 2008 (NSW) (PTGR) (Schedule 4D drugs); and

• drugs of addiction within the meaning of the PTGA, being drugs contained in Schedule 8 of the Poisons List proclaimed under section 8 of the PTGA (Schedule 8 drugs).

For the purposes of the particulars set out below, the relevant standards applicable to the practitioner were informed by the:

(i) Pharmaceutical Society of Australia 'Professional Practice Standards' dated June 2017.

(ii) Pharmaceutical Society of Australia 'Code of Ethics for Pharmacists' dated 1 February 2017.

(iii) Pharmacy Board of Australia 'Guidelines for dispensing of medicines' dated May 2018.”

18. The amended Complaint provides the first and second complaints are each that:

“The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a) of the National Law in that the practitioner has engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of pharmacy is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.

19. The amended Complaint provides the third complaint is that:

“The practitioner is guilty of professional misconduct under section 139E of the National Law in that the practitioner has:

i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or

ii. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration.”

20. The amended Complaint also provides that the particulars of the first and second complaint are relied on “both individually and in combination” as particulars for the purposes of the third complaint.

21. The amended Complaint sets out the particulars of the first complaint as follows:

“1. On 25 July 2022, at Southern Cross Care, the practitioner inappropriately destroyed Schedule 8 drugs, in the quantity set out in Schedule B, contrary to clause 128(4) of the PTGR, and in circumstances where the drugs were destroyed without recording the:

a. fact of the destruction of the drug;

b. the name and signature of the person who witnessed the destruction of the drug.

2. Between 11 August 2019 and 11 February 2020, at Meninya Street Pharmacy, the practitioner destroyed drugs, in the quantities set out in Schedule C, without ensuring that the date of the name and signature of the witness to the destruction of the drugs accorded with the date that the practitioner entered in the register for the destruction of the drugs, in order to demonstrate his compliance with clause 125 of the PTGR.

3. Between 4 March 2020 and 19 May 2021, at Meninya Street Pharmacy, the practitioner destroyed Schedule 8 drugs, in the quantities set out in Schedule C, in circumstances where the drugs were destroyed without recording the name, signature and professional registration number of a person who witnessed the destruction of the drug, contrary to clause 125 of the PTGR.

4. Between 24 January 2022 and 29 December 2022, at Meninya Street Pharmacy, the practitioner inappropriately dispensed Schedule 8 drugs, in the quantities set out in Schedule D, on prescriptions which did not comply with clause 80 of the PTGR, in that: a. the prescriptions did not include the quantity in words and figures; b. the prescriptions did not include a repeat interval; c. the prescriber did not write all the particulars in their handwriting on computer generated prescriptions.

Patient C

9. Between 1 August and 19 December 2022, at Meninya Street Pharmacy, the practitioner inappropriately dispensed Schedule 8 drugs to Patient C, as set out in Schedule E, in circumstances where the practitioner:

a. was aware or ought to have been aware of the risks of concurrently dispensing two Central Nervous System depressants, being alprazolam and oxycodone;

b. failed to address the risk with the prescriber.

Patient D

10. Between 13 December and 28 December 2022, at Meninya Street Pharmacy, the practitioner inappropriately dispensed Schedule 4D drugs to Patient D, as set out in Schedule E, in that the quantity (including intervals between dispensing) and / or purpose at which the drug was dispensed did not accord with the recognised therapeutic standards, contrary to clause 54 of the PTGR, in circumstances where the practitioner:

a. dispensed 392 75mg pregabalin capsules over a 15-day period;

b. dispensed 112 75mg pregabalin capsules when Patient D was deceased.

11. Between 23 June and 16 December 2022, at Meninya Street Pharmacy, the practitioner inappropriately dispensed Schedule 4D drugs to Patient D, as set out in Schedule E, in that the quantity (including intervals between dispensing) and / or purpose at which the drug was dispensed did not accord with the recognised therapeutic standards, contrary to clause 54 of the PTGR, in circumstances where the practitioner:

a. dispensed 192 10mg zolpidem tablets, in excess of the maximum dose of 10mg per day;

b. dispensed 10mg zolpidem tablets without adequate clinical justification.

Patient E

12. Between 10 May and 6 December 2022, at Meninya Street Pharmacy, the practitioner inappropriately dispensed Schedule 4D drugs to Patient E, as set out in Schedule E, in that the quantity (including intervals between dispensing) and / or purpose at which the drug was dispensed did not accord with the recognised therapeutic standards, contrary to clause 54 of the PTGR, in circumstances where the practitioner:

a. dispensed 500 1mg Lorazepam tablets, over a 210-day period;

b. failed to address the additional risks of supplying an 88-year-old patient with more than double the prescribed amount of Lorazepam with the prescriber.”

22. The amended Complaint sets out the particulars of the second complaint as follows:

“1. Between 5 January and 25 August 2022, at Meninya Street Pharmacy, the practitioner inappropriately made 118 stock adjustment entries for Schedule 8 drugs on the dates set out in Schedule F, in circumstances where the practitioner failed to:

a. provide an adequate explanation of the reason for the stock adjustment; and/or

b. provide supporting documentation such as a destruction certificate or receipt.

2. Between 25 March and 2 July 2022, at Meninya Street Pharmacy, the practitioner failed to maintain accurate dispensing records, as set out in Schedule G, when he attributed the same dispensing number to a different Schedule 8 drug and different quantities of drugs, contrary to clauses 111, 112, and/or 177(1} of the PTGR, in circumstances where the practitioner:

a. did not record a unique prescription reference number when supplying a Schedule 8 drug that was different to the drug listed on the prescription;

b. made an inaccurate or misleading record of the type, quantity and/or strength of the drugs supplied under the original prescription;

c. overrode warning messages when misusing the Modeus Partial Supply software to make these inaccurate entries as set out in Schedule G. updated prescription or a record of his contact with the prescriber supporting the change.

3. Between 26 May and 4 July 2022, at Meninya Street Pharmacy, the practitioner inappropriately supplied Schedule 8 drugs contrary to prescriptions, on the dates set out in Schedule H, in circumstances where:

a. the practitioner altered the strength of the drug without discussing the change with the prescriber;

b. the practitioner did not make a record of the reason for changing the strength of the drug;

c. the practitioner failed to keep or refer to documentation supporting the reason for the change in the strength of the drug such as an appropriately corrected or updated prescription or a record of his contact with the prescriber supporting the change.”

23. Mr Nulty admits the three complaints and all the particulars of the three complaints specified in the amended Complaint. Mr Nulty provided written notification of his admissions to the Tribunal in the Reply and attached statements lodged with the Tribunal on 24 August 2026.

24. On the basis of Mr Nulty’s admissions of the entirety of the amended Complaint, consistent with the material before the Tribunal, particularly the expert report of Mr Matthew Bellgrove of 29 May 2025, we are satisfied Mr Nulty is guilty of:

25. two complaints of unsatisfactory professional conduct under section 139B(1)(a) of the National Law because, on the basis of the admitted particulars of the first and second complaints, we are satisfied Mr Nulty engaged in conduct that demonstrated the knowledge, skill or judgment possessed, or care exercised, by Mr Nulty in the practice of pharmacy was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.

26. a complaint of professional misconduct under section 139E of the National Law because, on the basis of the admitted particulars of each of the first and second complaints, we are satisfied Mr Nulty has engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.

27. We therefore find the three complaints specified in the amended Complaint proven.

Consideration of protective orders

26. The object of these proceedings is protection of the public, rather than punishment of the health practitioner. As stated by the Court of Appeal in Health Care Complaints Commission v Do [2014] NSWCA 307 (at [35]):

“The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.”

27. Section 149C(1)(a) of the National Law provides that the Tribunal may cancel or suspend a registered health practitioner’s registration if the Tribunal is satisfied that the practitioner is guilty of professional misconduct, as is the case in these proceedings. However, the HCCC instead seeks a protective order that Mr Nulty be reprimanded under s 149A(1)(c) of the National Law on the basis of Mr Nulty’s conduct and insight since the conduct the subject of the amended Complaint.

28. The HCCC also does not seek that the Tribunal makes protective orders in the nature of conditions on Mr Nulty’s practise as a pharmacist, but in submissions indicated an intention that the current conditions on Mr Nulty’s registration would continue until considered by the Pharmacy Council of NSW. This was also the expectation of Mr Nulty, as set out in submissions and discussed below.

The Respondent’s relevant history and the circumstances of the complaints

29. The respondent is an employed pharmacist practising in Moama, NSW. He was first granted general registration as a pharmacist in 1978. He practised in Victoria for almost 40 years and he then commenced to practise in NSW in mid-2017 at the same pharmacy in Moama.

30. The conduct the subject of the amended Complaint includes that Mr Nulty:

31. destroyed a significant quantity of Schedule 8 drugs, drugs of addiction, on 25 July 2022 at a nursing home in breach of important statutory requirements including to record the fact of destruction of the drug and the name and signature of the person who witnessed the destruction of the drugs.

32. destroyed drugs of addiction without a prescribed witness (namely a police officer or inspector) present in breach of an important statutory requirement. This conduct occurred between August 2019 and February 2020 and again between March 2020 and May 2021 at the pharmacy at which Mr Nulty worked.

33. over the course of 2022, dispensed Schedule 8 drugs on prescriptions that did not comply with statutory requirements for prescribed details of the prescription to be handwritten on the drugs dispensed.

34. dispensed Schedule 8 drugs, of high risk of misuse, dependence and overdose with sedating effects, over a period of months in 2022, in significant quantities to a patient without communicating safety concerns to the patient and where a heightened clinical scrutiny was appropriate.

35. dispensed Schedule 4D drugs, including one intended for short term use, to another patient in excess and without clinical justification for over six months and then Mr Nulty continued to dispense over two weeks in 2022 when the patient was deceased.

36. dispensed Schedule 4D drugs at more than double the recommended dose to a further patient during a period of over seven months in 2022, in circumstances where he should have discussed the dose with the prescriber and did not.

37. at various times in 2022 made stock adjustment entries in the Drug Register in respect of Schedule 8 drugs without adequate information or supporting documentation and failed to maintain accurate dispensing records, including in respect of Schedule 8 drugs.

38. supplied Schedule 8 drugs contrary to prescription over a period of six weeks in 2022.

39. Following the conduct the subject of the amended Complaint, Mr Nulty’s registration has been subject to conditions since September 2023. The conditions have included a two year period of “Category C” Supervision that ended in December 2025 as well as a Performance Assessment that occurred in November 2025. We understand the condition imposing the Category C Supervision was removed, in part, as a result of a successful Performance Assessment.

40. The remaining conditions currently applying to Mr Nulty’s registration are:

“1. Not to possess, supply, manufacture or dispense any `drug of addiction` including derivatives or compounded medication (Schedule 8 of the NSW Poisons List) as defined by Poisons and Therapeutic Goods Act 1966 (NSW) or any substance in an equivalent List in any other Australian state or territory.

2. Not to possess, supply, manufacture or dispense any substance listed in Schedule 4 Appendix D to the Poisons and Therapeutic Goods Regulation 2008 (NSW).

3. To forward evidence to the Pharmacy Council of NSW within 14 days of conditions imposed, that the practitioner has provided a copy of the conditions to their employer.

4. Within 14 days of a change in the nature or place of their practice, the practitioner is to forward evidence to the Pharmacy Council of NSW that they have provided a copy of their conditions to their employer.”

33. Since the conduct the subject of the amended Complaint Mr Nulty has:

34. been subject to two years of professional supervision by the Pharmacy Council of NSW, participating in 25 meetings with his supervisor Mr Albert Regoli who provided a letter of 1 August 2026 stating his opinion that “Mr Nulty now has a very good understanding of the practice of pharmacy and performs to a standard expected of a pharmacist”.

35. undergone a Performance Assessment in November 2025, assessed by Mr Aleksander Gavrilovic. Mr Nulty was assessed as satisfactory in all areas and the assessor recommended that all conditions be removed from Mr Nulty’s registration.

36. completed a significant amount of continuing professional development activities.

37. Mr Nulty provided a number of letters of support including from former owners of the pharmacy and current colleague pharmacists who all have knowledge of Mr Nulty’s past conduct and speak to his honesty, integrity, remorse, insight and commitment to professional standards.

38. Mr Nulty has no other relevant regulatory history.

Appropriate protective orders

36. Mr Nulty’s conduct involved numerous instances of handling Schedule 8 and Schedule 4D drugs in a manner that did not comply with the statutory requirements, in circumstances where such requirements are necessarily strict due to the nature of the drugs and where Mr Nulty is a pharmacist with decades of experience who should have known better. Mr Nulty’s conduct had both the potential to undermine the regime regulating drugs, including drugs of addiction and to cause harm to patients.

37. We do not consider the context in which the conduct occurred, namely Mr Nulty’s relative new entry to a different State and practise in a regional area close to the border, as well as the pressures of Covid, ameliorate or justify any of Mr Nulty’s conduct.

38. However, since the intervention of regulatory bodies in 2023, we are satisfied Mr Nulty has taken significant steps to address his gaps in knowledge as well changing his mindset from “haste” to “stop and think”. Mr Nulty has acknowledged he was lax and is remorseful for his conduct. Further Mr Nulty has significant support from his colleagues and community who are on notice of his previous poor conduct.

39. In respect of reprimands, the Tribunal has previously considered, in Health Care Complaints Commission v Perera [2018] NSWCATOD 112 that (at [99]):

“We conclude that the appropriate order is to reprimand the practitioner. The reprimand reflects that compliance with conditions during their currency is of upmost importance and a breach of a condition or conditions reflects a lack of responsibility by the professional involved. It demonstrates that the practitioner is sanctioned for abrogating that responsibility through carelessness and/or inattention to detail. Secondly, the reprimand acts as a deterrent to other practitioners to engage in like conduct. Thirdly, and importantly, the reprimand upholds and reinforces the standards of the profession to which it expects its members to adhere.”

40. These considerations are equally applicable to other conduct that does not meet the standards of the profession. In the circumstances, the Tribunal is satisfied Mr Nulty should be reprimanded under s 149A(1)(a) of the National Law in order to appropriately denounce behaviour that breaches the standard of professional conduct expected of pharmacists.

41. We have considered whether further protective orders are required because we consider a finding of professional misconduct a matter of great seriousness.

42. The parties’ each made submissions in respect of the conditions currently applying to Mr Nulty’s registration. Mr Nulty’s submission was that the most appropriate forum to seek lifting of the conditions on his registration was the Pharmacy Council of NSW in the event the Tribunal did not determine to cancel or suspend his registration. The HCCC’s submission was (at [39]):

“…the Commission acknowledges that Mr Nulty should be able to continue to practise, as he has been, with his current conditions. To the extent that Mr Nulty seeks a variation or removal of his current conditions, he can apply to the Pharmacy Council of NSW for any such review (and to the Pharmaceutical Regulatory Unit for the reinstatement of his prescribing rights).”

43. However, the current conditions on Mr Nulty’s registration (as set out at [32] above) were first imposed under s 150 of the National Law and have subsequently been amended under s 150C of the National Law. As a consequence, by operation of s 150H(2)(a) of the National Law that provides:

The conditions imposed by the Council have effect until the first of the following happens—

(a) the complaint about the registered health practitioner or student is disposed of;

(b) the conditions are removed by the Council.

the current conditions on Mr Nulty’s registration as a pharmacist will cease to have effect once these Tribunal proceedings are finalised. For the current conditions on Mr Nulty’s registration, imposed under s 150 of the National Law, to continue for any period, the Tribunal will therefore need to make fresh protective orders imposing those conditions.

44. While we are mindful Mr Nulty has addressed gaps in his knowledge, as evidenced by a successful Performance Assessment and that Mr Nulty has demonstrated insight and remorse for his past conduct that did not meet the standards expected of a pharmacist with his experience, we consider the current conditions on Mr Nulty’s registration should continue for a further six months to allow for a period of transition for Mr Nulty to resume unrestricted practice in respect of the conduct the subject of these proceedings.

45. On that basis we will make further protective order under s 149A(1)(b) of the National Law that the current conditions on Mr Nulty’s registration are to continue for a further six months from the date of this decision. The Pharmacy Council of NSW Council is the appropriate review body in respect of those conditions, for the purposes of Pt 8, Div 8 of the National Law.

Costs

46. The HCCC seeks an order that Mr Nulty pay the HCCC’s costs as agreed or assessed. The HCCC submits as the party with “overall success”, succeeding on all three complaints, it should be awarded all of its costs.

47. While Mr Nulty concedes he should pay some costs, he submits there should be a “modest reduction” of 20% because, via the amended Complaint and the amended application for disciplinary findings and orders, the HCCC withdrew four particulars in respect of the first complaint, amended some references to an incorrect clause, and sought a reprimand instead of suspension or cancellation of Mr Nulty’s registration. Mr Nulty submits the HCCC did not have reasonable prospects of success in respect of the withdrawn particulars and that their inclusion was oppressive conduct, disentitling the HCCC to an award of its full costs.

48. The Tribunal has power to order costs under clause 13 of Schedule 5D of the National Law. This provision displaces, via clause 13(4) the usual rule in most Tribunal proceedings that costs are only awarded in special circumstances under s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).

49. The costs of proceedings of this nature before the Tribunal generally follow the event unless there has been some disentitling conduct by the HCCC in the conduct of the proceedings: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [33]-[48]. Further authorities as to costs in these proceedings were recently considered in Health Care Complaints Commission v Sammy [2026] NSWCATOD 99 (Sammy) at [291]-[295].

50. Mr Nulty bears the onus of establishing a basis for departure from the usual rule that the HCCC is entitled to its costs: Health Care Complaints Commission v Balafas (No 2) [2021] NSWCATOD 175 at [3].

51. Mr Nulty referred the Tribunal to cases where the HCCC has been awarded less than all of its costs: Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 and Health Care Complaints Commission v Khalighimonfared (No 2) [2022] NSWCATOD 101. We do not consider the circumstances of these proceedings to be analogous because in Lucire (No 2) there were three factors that mitigated against full recovery of costs, none of which apply in these proceedings and similarly in Khalighimonfared (No 2) factors relevant to reduction of costs were failures of the HCCC to obtain findings and orders also do not apply in these proceedings where the HCCC has been successful in establishing all of the three complaints.

52. This is also not a case where the HCCC pursued a complaint for which it did not seek the Tribunal to exercise any powers: see Health Care Complaints Commission v Achurch (No 3*)* [2019] NSWCATOD 138 at [39].

53. A respondent having been put to “considerable” expense responding to withdrawn particulars, as submitted by Mr Nulty without any evidentiary basis, does not establish a reduction in the award of costs is warranted. Similarly to Sammy*,* a hearing in these proceedings was necessary in order for the Tribunal to determine findings as to the relevant conduct and to consider what, if any, orders are appropriate. Also, similarly, Mr Nulty’s admissions have resulted in costs savings whereby the scheduled three day hearing was reduced to half a day. As was the case in Sammy (at [297]):

“…, the admissions were an important aspect in the Tribunal’s assessment of the respondent’s insight, and were entirely appropriate and consonant with the respondent’s duty under s 36(3) of the NCAT Act to cooperate with the Tribunal’s guiding principle to facilitate the ‘just, quick and cheap resolution of the real issues in the proceedings’.”

54. We do not consider the HCCC’s withdrawal of four particulars to be oppressive conduct in the circumstances of the proceedings including where all three complaints were admitted by the respondent and determined to be proved by the Tribunal. Mr Nulty therefore has not established any disentitling conduct on the part of the HCCC.

55. It follows we consider the appropriate order to make is for Mr Nulty to pay the HCCC’s costs as agreed or assessed.

Orders

1. Pursuant to s 149A(1)(a) of the Health Practitioner Regulation National Law (NSW) the Respondent is reprimanded.
2. Pursuant to s 149A(1)(b) of the Health Practitioner Regulation National Law (NSW) the following conditions are imposed on the Respondent’s registration for a period of six months from the date of these orders:

(a) Not to possess, supply, manufacture or dispense any `drug of addiction` including derivatives or compounded medication (Schedule 8 of the NSW Poisons List) as defined by Poisons and Therapeutic Goods Act 1966 (NSW) or any substance in an equivalent List in any Australian state or territory. (b) Not to possess, supply, manufacture or dispense any substance listed in Schedule 4 Appendix D to the Poisons and Therapeutic Goods Regulation 2008 (NSW) or any substance in an equivalent List in any Australian state or territory. (c) To forward evidence to the Pharmacy Council of NSW within 14 days of conditions imposed, that the practitioner has provided a copy of the conditions to their employer. (d) Within 14 days of a change in the nature or place of their practice, the practitioner is to forward evidence to the Pharmacy Council of NSW that they have provided a copy of their conditions to their employer.

3. The Pharmacy Council of NSW is the appropriate review body for the conditions contained in Order 2.
4. The Respondent is to pay the Applicant’s costs as agreed or assessed.
5. The disclosure of the names of persons listed in the Schedule to the Complaint is prohibited pursuant to s 64 of the Civil and Administrative Tribunal Act 2013.

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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