Health Care Complaints Commission v Singh [2025] NSWCATOD 171;

"(37) While the Commission bears the onus of establishing that Mr Elshaimy is not a suitable person to practice given his proven involvement in conduct which evidences bad character the evidentiary onus in practical terms shifts to Mr Elshaimy who must be able to point to some positive evidence of reformation. Given the gravity of his misconduct that onus is heavy. As Walsh JA commented in obiter in ex parte Tziniolois re Medical Practitioners Act (1966) 67SR [NSW 448 at [461]] 'reformations of character and of behaviour can doubtless occur but the recurrence is not the usual but the exceptional thing one cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discernible kind has occurred. If a man has exhibited some serious deficiencies in his standards of conduct and his attitude it must require clear proof to show some years later that he has established himself as a different man.'"

1. The Applicant dealt with the legal principles behind the decision of the Tribunal as follows:

(1) In considering this matter there are a number of uncontroversial general principles that the Tribunal will need to apply to determine what, if any, protective orders should be made in the circumstances of this case.

(2) It is of course trite to say that the primary function of the jurisdiction exercised by the Tribunal is protective, not punitive. In Clyne v New South Wales Bar Association [1960] HCA 40; (1960) 104 CLR 186 at 201-202, in the context of a legal practitioner but discussing the issue of a protective jurisdiction, the High Court said:

"Although it is sometimes referred to as the 'penalty of disbarment it must be emphasised that a disbarring order is in no sense punitive in character. When such an order is made, it is made, from the public point of view, for the protection of those who require protection, and from the professional point of view, in order that abuse of privilege may not lead to loss of privilege."

(3) Although the role of the Tribunal is protective, protection of the health and safety of the public is not confined to preventing repeat behaviour by the Respondent. Meagher JA, with whom Basten and Emmett JJA agreed, discussed the paramount principles of the protection of the health and safety of the public in Health Care Complaints Commission v Do [2014] NSWCA 307 at (35] where His Honour said:

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 conduct 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. (emphasis added)

(4) Similarly, the Court of Appeal has made it plain that each case must be considered on its own merits and an evaluative process relating to its facts will determine the result. In Chen v HCCC [2017] NSWCA 186 Basten JA, with whom Leeming JA agreed, said:

Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment lo be made by the Tribunal as to the nature and seriousness of the conduct.

(5) See also Lee v HCCC [2012] NSWCA 80 at [34] and HCCC v Karalasingham [2007] NSWCA 267 at [67] per Basten JA.

1. Those principles have been applied by the Tribunal. In HCCC v Drinkwater (No 2); HCCC v Lilly (No 2); HCCC v Davies (No 2); HCCC v Than (No 2) [2019] NSWCATOD 59, the Tribunal confirmed the statements of the Court of Appeal in Lee v HCCC, stating, as follows:

52. Some submissions referenced a number of cases which were said to contain comparable outcomes. While discussion of the principles and findings of similar cases may on some occasions be of assistance, we note the analysis of the Courl of Appeal in Lee v HCCC [2012) NSWCA 80 [at 22-33] concerning why a simplistic or 'ready reckoner' approach to 'sentencing range ' should be regarded with extreme caution in the context of disciplinary proceedings for health practitioners.

53. In Lee, the Court concluded this analysis by noting [at 3-1] that:

(a) comparison with the outcomes in earlier cases may be useful if those earlier cases show some discernible range or pattern;

(b) such a range or pattern, even when discernible, cannot be regarded as a precedent indicating what is "correct";

(c) the range or pattern is, at best, a reflection of the accumulated experience and wisdom of decision-makers;

(d) the range or pattern will potentially be of value only if it is possible to gather from it an appreciation of some unifying principle;

(e) since the predominant consideration is the protection of the public, a decision can only be made by reference to the facts of the particular case and by considering what measures are needed to ensure that the future behaviour of the particular practitioner is shaped in a way that is consistent with that protection; and

(f) the [specialist tribunal] brings special skill and experience to the task of formulating protective orders.

1. Hence, what can be discerned from the authorities, in part, is that:

(1) each case be considered in its own circumstances, by way of an evaluative judgment;

(2) Comparison with similar cases or even trying to ascertain a range or pattern of outcomes in other cases is fraught with danger, and does not indicate a 'correct' outcome; and

(3) General deterrence, denouncement of particular conduct and maintenance of the public confidence in the health professions are of great importance.

1. The last point is true for many reasons. One of them is that there is immense trust placed in health care professionals, who also hold great power. In a passage cited with approval in HCCC v Litchfield, Priestly JA said in Richter v Walton (Court of Appeal, 15 September 1993, unreported, at 8-9:

The degree of trust which patients necessarily give to their doctors may vary according lo the condition which takes the patient to the doctor. Even in regard to the most commonplace medical matters the trust a patient places in a doctor is considerable. In some cases, of which the present seems to me to be an example, the patient's trust cannot help but be almost absolute. The doctor's power in regard to the patient in such cases is also very great. I do not mean power in an abstract way but as a matter of fact; the extent of the power will vary according to the temperament of the patient, but the doctor with some patients and for limited periods, because of the relationship in which they are temporarily placed, is in a position to do whatever the doctor wants with the body of the patient. This is one of the reasons why doctors are subject to correspondingly great obligations and are expected to maintain very high standards: all this being very much in the public interest.

1. The principles to be applied in determining the appropriate protective order(s) are not controversial and are set out in, amongst other decisions, HCCC v Litchfield [1997] NSWSC 297; (1977) 41 NSWLR 630; Gayed v Walton 31/7/1997 NSWCA unreported; Bannister v Walton (1993) 30 NSWLR 699. They include the following considerations:

(1) The protection of the public, which is of paramount consideration;

(2) The maintenance of the high standards of the profession;

(3) Deterring not only the particular practitioner but others who may stray from the appropriate standards; a reminder to the profession; and

(4) To emphasise the unacceptability of the conduct involved.

1. No order should be made which has more serious consequences for the practitioner than is reasonably necessary to promote the protective purpose. However, as Basten JA observed in NSW Bar Association v Meakes [2006] NSWCA 340 at [114] that purpose may operate in different ways: either by its direct effect on the practitioner in preventing a practitioner from practising (deregistration or suspension) or by acting as a deterrent to repetition. His Honour said:

There are also important but indirect effects to be considered. First, the order reminds other members of the profession of the public interest in the maintenance of high professional standards. Secondly and more specifically, it may give emphasis to the unacceptability of the kind of conduct involved in the disciplinary offence. Thirdly, by speaking to the public at large, it seeks to maintain confidence in the high standards of the profession. The underlying purpose is not self-aggrandisement on the part of the profession, but a recognition of the social value in the availability of the services provided to the public, combined with an understanding of the vulnerability of many who require such services.

1. Ultimately, whether the conduct found is sufficiently serious to warrant suspension or de-registration is a matter of degree and judgement - see Savag v Health Care Complaints Commission [2001] NSWCA 411 at [82].
2. In those circumstances, the Applicant submitted that the only appropriate primary protective order is cancellation of the Respondent's registration.
3. This is necessary for:

(1) Specific deterrence, in circumstances where the Respondent has not put on any evidence at Stage 2 one cannot infer he would not engage in similar conduct; and

(2) General deterrence, to send a message to the public and the profession that it is unacceptable for persons holding registration in positions of such trust be those who have engaged in serious misconduct and actions consistent with gross character deficiencies.

1. Weighing up the seriousness of the conduct and the lack of evidence at Stage 2, the Applicant says a non-review period of 3 years would be appropriate.
2. The Applicant also sought a prohibition order prohibiting the Respondent from providing health services and submitted that:

(1) Pursuant to section 149C(5) of the National Law, the Tribunal may make a prohibition order. That section provides as follows:

(5) If the Tribunal suspends or cancels a registered health practitioner's or student's registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a prohibition order) do any one or more of the following-

(a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently;

(b) place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently.

1. The necessary risk required for the section to operate is necessary here, and such an order is appropriate.
2. The basis for that submission is that:

(1) The nature of the conduct is serious, and includes theft from the workplace as well as serious misconduct against an individual. It bespeaks of serious character deficiencies, particularly when coupled with the lack of candour to the Tribunal;

(2) The Respondent has not adduced any evidence of future plans, remorse or insight, reformation or the like. This was a highly relevant consideration in the making of a prohibition order in Health Care Complaints Commission v Sbirziola [2022] NSWCATOD 118 (at [75]), Health Care Complaints Commission v Gorrell (No 2) [2022] NSWCATOD 62 at [58];

(3) ln the absence of a prohibition order the protective purpose of the cancellation order has the capacity to be easily undermined, for example, if the Respondent were to commence work as an AIN, as an orderly or similar. These considerations were relevant to the making of a prohibition order in Health Care Complaints Commission v Shrimpton (No.2) [2019] NSWCATOD 48 (see at [25]).

1. In respect of costs the Applicant seeks the costs of the hearing which is contested and points out that the ordinary rule in this jurisdiction is that costs follow the event and the Applicant has been successful on the contested issues and the issues generally.

1. The Respondent filed it's submissions which were directed first to the appropriate order for Complaint 2 where the Respondent submitted that the Tribunal enjoys no discretion in making a finding of unsatisfactory professional conduct, resisting a prohibition order being made under s 149C(5) of the National Law of AWS (34)-(37) and (39(c)) and resisting the claim for costs made by the Respondent as the costs of the entirety of the proceedings are sought. In its submissions the Respondent stated that it relies on the evidence given before the Tribunal and reads and relies on the affidavit of Mr Justin Philip Drew sworn on 14 October 2024. The Respondent made the following concessions:

(1) the Applicant has established each particular of Complaints 1, 2 and 3 noting that the Applicant admitted the conduct the subject of Complaints 1 and 2;

(2) given the unchallenged evidence on Complaint 2 the Respondent accepts that it is open to the Tribunal to make a finding of unsatisfactory professional conduct;

(3) as to Complaint 3:

(a) given the findings made by the Tribunal the Respondent has not demonstrated remorse or contrition in respect of Complaint 3. It follows that the Respondent does not enjoy good prospects of rehabilitation on Complaint 3. However, the concession does not extend to Complaint 2 as the nature of those complaints are divorced from Complaint 3;

(b) further, given the seriousness of the findings on Complaint 3 the Respondent accepts it is open to the Tribunal to:

(i) cancel the Respondent's registration under s 149C(1)(d) of the National Law;

(ii) impose a non‑review period of three years from the date the Tribunal publishes its reasons for decision and orders under s 149C(7) of the National Law;

(iii) the power of the Tribunal to impose a prohibition order is enlivened if the Respondent's registration is cancelled Health Care Complaints Commission v Le (2022) NSWCATOD 85 at [110];

(iv) the Respondent submitted that the statement of Person A dated 27 October 2025 ought be ruled inadmissible. The Respondent submitted that given the concession above the statement is irrelevant and serves no purpose other than to inflame the Tribunal against the Respondent;

(v) the Respondent apprehends that the Applicant intends on submitting that the statement is relevant as to the public interest in imposing the appropriate protective order but that submission would run afoul of what the Court of Appeal held in Pridgeon v Medical Council of NSW (2022) NSWCA 60 at [68] where the reference in s 3A of the National Law to public interest should be understood as a reference to the public interest in the protection of the public's health and safety. The content to be given to that protection must take its meaning from the conduct of the practise of nursing in respect of which a practitioner's registration is granted and the relevant public interest must be in the conduct by the practitioner of his profession as a nurse;

(vi) in respect of the legal principles the Respondent stated that the legal principles set out previously are not controversial but the Respondent adds the following decerned from the relevant authorities. First the Tribunal must consider all aspects of the possible orders available to it in determining what order to make under the National Law Chen v Health Care Complaints Commission (2017) 95 NSWLR 334 (2017) NSWCA 186 at 24 where it follows from this principle that the orders imposed by the Tribunal need to be separated and tailored to addressing the purpose and of function of the National Law, see for example the separate orders imposed in Health Care Complaints Commission v FQZ (2023) NSWCATOD 122. Second preserving public confidence in the profession is a relevant factor when imposing a protective order. However the notion of general deterrence is subsidiary to other protective elements in the exercise of a protective jurisdiction. General deterrence can be met by orders other than a period of suspension or imposition of a significant fine. Lee v Health Care Complaints Commission (2012) NSWCA 80 at [31] the judges agreed with that principle. Third it is open to the Tribunal to caution, reprimand or counsel the Respondent for Complaint 2 being a complaint of unsatisfactory professional conduct or impose no sanction at all. National Law s 149A(1)(a) and the case of FQZ at pages 31 to 34. The Respondent submitted that a reprimand under s 149A(1) of the National Law does not trivialise a serious lapse of professional standards as a reprimand may serve as an official rebuke for proven past conduct whereas in comparison a warning serves as a caution to avoid future repetition;

(vii) the Respondent therefore submitted that any order made with respect to Complaint 2 ought to be kept separate and distinct from any orders in respect of Complaint 3.

(4) In respect of Complaint 2 the Respondent conceded that it did not notify the National Board of the charges particularised in Complaint 1 within seven days after being aware that the charges had been laid (being offences punishable by 12 months imprisonment or more in New South Wales under the National Law s 130(3)(a)). However the Respondent indicated that his failure to notify was not deliberate but rather a product of the Respondent's circumstances at the time which are not controversial.

(5) The Respondent submitted that it would be inappropriate to impose sanctions in respect of Complaint 2 for various reasons. In respect of Complaint 3 the Respondent conceded that an order cancelling registration of the Respondent's registration would be an appropriate outcome and that it is open to the Tribunal to impose a non‑review period of three years in those circumstances.

(6) The Respondent took issue with the request for a prohibition order and set out the legal principles as follows:

(a) in FQZ the Tribunal relied on the decision in Le at [110]-[114] where a compendious exposition of the relevant principles were set out by summary. The Respondent identifies the following principles which emerged:

(i) first the Tribunal must be satisfied that the practitioner poses a substantial risk to the health and safety of members of the public. National Law s 149C(5);

(ii) second a substantial risk is a risk that is material and real or apparent on the evidence not without substance or speculative:

1. it is not sufficient to assert that there is a material risk that the conduct the subject of the complaint might be repeated as it is not axiomatic that such risk is substantial. Le at [110] citing Health Care Complaints Commission v Brush (2015) NSWCATOD 120; and
2. even serious criminal offending for example a conviction for sexual assault may not attract a finding of substantial risk depending on the subjective circumstances of the practitioner. Health Care Complaints Commission v Menz (No. 2) (2017) NSWCATOD 172 at [21]-[22];

(iii) the burden rests on the Applicant to satisfy the onus to warrant the making of a prohibition order.

1. In respect of the prohibition order the Respondent makes the following submissions:

(1) The Respondent submits that the Applicant has set out three bases for the making of a prohibition order and states that it is convenient to address each in turn first. While it is correct that the Respondent engaged in theft from the workplace the Applicant cannot establish on the evidence that the Respondent will be placed in any position where he would commit the offence again. The Respondent does not enjoy any gainful employment as a nurse where he would have access to medication (including use of an authorised access path). Further, the evidence of Dr Leanne Hunt was that Propofol a schedule 4 drug is now restricted such that nurses are not freely able to secrete vials.

(2) The character deficiencies which attend the submission elides that the Respondent confessed to the theft to New South Wales police officers immediately upon question and the Respondent has not reoffended. The assertion that the Respondent was not candid to the Tribunal must attach only to Complaint 3 and nothing was put to him in cross‑examination or cast in writing that the Respondent's conduct in Complaints 1 and 2 demonstrated serious character deficiencies (nor could it in circumstances where the Respondent was limited to that conduct).

(3) Second, it is incorrect to repeatedly suggest the Respondent has "not adduced any evidence of future plans, remorse or insight. The unchallenged evidence of the Respondent in his evidence in chief was that he had completed continuing professional development courses with the hope of returning to practice (although that is no longer possible) and he enjoyed significant prosocial supports being his wife and his family member. The Applicant cannot point to any evidence to support the Board's submission that the Respondent is likely to be a material let alone a substantial risk warranting prohibition. Respectfully the Applicant has failed to discharge the evidential or legal onus to establish this risk.

(4) Third, aside from the mere assertion the Applicant has not led any evidence to suggest that the Respondent will not follow the orders imposed by this Tribunal nor that he is employed as a "AIN as an orderly or similar" indeed the Respondent has been unable to work with NDIS patients because of the cancellation of his clearance. In addition to the above there is no suggestion that the Applicant had breached the suspension imposed on him following the urgent hearing by the council. That demonstrated history of compliance spanning an excess of five years alongside an absence of any reoffending across that period (when he was also the subject of a community corrections order and an apprehended domestic violence order). The Respondent submitted that this militates powerfully against the making of a prohibition order.

(5) Finally, as a broader submission the Respondent submits that the focus of a protection order must be "assessed by evaluating the risk posed to the public" Health Care Complaints Commission v Shrimpton (No. 2) [2019] NSWCATOD 48 at [23]. The Respondent submitted that this case is fundamentally different to that confronting the Tribunal in Shrimpton. Shrimpton involved a complaint which was undefended and involved a nurse misusing an elderly patient's credit card to commit fraud and thereafter taking steps to conceal her misconduct by lying to the patient's family following the patient's death. The impugned conduct in Shrimpton led to an irresistible conclusion that a prohibition order follow the disciplinary orders as it involved fraud against a vulnerable member of the public. The Respondent also referred to Health Care Complaints Commission v Sbirziola (2022) NSWCATOD 118 and Health Care Complaints Commission v Gorrell (No. 2) (2022) NSWCATOD 62 and sought to differentiate those from the current situation.

(6) Finally, that it is not in the submission of the Respondent to downplay the seriousness of misconduct but rather bolsters the submission that the Respondent is not a risk to the public as the findings made by the Tribunal are unlikely in the extreme to occur thereby appreciably reducing any asserted future risk of reoffending by the Respondent.

1. The Respondent accepts that by operation of clause 13 of Schedule 5D of the National Law the Applicant would ordinarily be entitled to their costs. The Respondent contests the order seeking the awarding of costs on a limited basis. The Respondent referred to the matter of Lucire v Health Care Complaints Commission (No. 2) (2011) NSWCA 182 at [46]-[48] found that the award of costs may be discounted if the Applicant has engaged in disentitling conduct. In that case the judge set out by way of illustration "three factors militating against the Commission recovering all its costs ..." with the only factor relevant to the Respondent's case here being the "oppressive conduct on the part of the Commission in the Tribunal" complaining of procedural unfairness and the practitioner incurring "unnecessary expense ... in preparing for the hearing".
2. The Respondent submitted that like in Lucire the conduct of the Applicant was oppressive and led to the practitioner incurring unnecessary expense.
3. The Respondent submitted that an appropriate order would be that the Applicant is awarded 50% of their costs of these proceedings (and excluding the costs which were borne by the parties in relation to the appeals vis‑à‑vis the Summons to the New South Wales Local Health District and the New South Wales Police which were disposed of by the Court of Appeal. In support of its submission the Respondent identifies without limitation the following:

(1) The Respondent resisted an adjournment when this matter was first listed for hearing. While it is correct that the Respondent was late in providing his evidence (as conceded) the Tribunal tritely observed that the Respondent's evidence did not traverse material which would have taken the Applicant by surprise and the Respondent was prepared to abandon the Summons to preserve the hearing.

(2) The Summons were opposed both in the Tribunal and in the Appeal Panel before that opposition was abandoned in the Court of Appeal. It is correct the cost orders for the Summons had been addressed but the Respondent's submission is focussed on the "conduct" of the Applicant where it is a model litigant it is trite to observe that ultimately the Applicant relied on the documents and the Summons in their supplementary tender bundle inquiry.

(3) The Applicant relied on evidence that was served late being the body worn footage and CCTV footage comprising a voluminous amount of videos and occasional significant delay to the hearing where:

(a) the Applicant had earlier stated we have disclosed everything that was given to us by police in terms of the Complaint and we have given up everything we have;

(b) the Applicant served that material less than two business days before the hearing. For those reasons the Respondent submits that the Applicant ought only be awarded a proportion of their costs limited to recovery of 50% and excluding any costs borne by the parties in respect of the Summons.

1. In respect of Complaints 1, 2 and 3 taken in totality the Tribunal is satisfied that an appropriate order would be cancellation of the registration as a nurse of the Respondent. It also believes that in respect of the cancellation of registration an order should be made that the Respondent not be entitled to have the cancellation reviewed for a period of three years from the date of the publication of the order. It therefore remains for the Tribunal to determine the request for a prohibition order and for an order for costs to be made against the Respondent.
2. In respect of the prohibition order the Applicant has submitted its reasons for the grant of such an order in which it argues that the Respondent should not be in a position to work in a healthcare environment by virtue of the fact that he is not a fit and proper person to work as a nurse and that he should not be in the position where he is exposed to members of the public some of whom might be vulnerable individuals and who could be harmed by the Respondent. The Applicant bases its position in part on the fact that there is no evidence to suggest that the Respondent who has been found to be a person who is not fit to practice the profession of nursing has changed his position since the events which led to this complaint.
3. It is true that a considerable amount of time has passed since the actions of the Respondent which led to this complaint. It is also well known that the test for whether a person should be subject to any particular orders is that the test to be applied is not at the time of the offence but at the time of the hearing.
4. The Applicant has submitted that the Respondent has failed to show any evidence that his position has changed, that he has improved or that he is a person currently of positive approach.
5. The Respondent has sought to indicate that there is evidence by Leanne Hunt the psychologist with whom the Respondent has worked and who stated specifically that at the time there was access to drugs such as Propofol but there is no longer such access.
6. The Tribunal is satisfied that the question is not whether or not there is access to drugs by working in the health care environment. The Respondent has sought to indicate that since this event the Liverpool Hospital has changed its regulations and nurses cannot freely access scheduled drugs except under more a controlled environment. The suggestion that the Tribunal rely on this change is rejected in that the Tribunal cannot be satisfied on any evidence by the Respondent that there is no opportunity for access to drugs in general.
7. In addition, the Respondent has indicated that he is no longer working in that area or in the NDIS where he did work for a short period of time in conjunction with his current wife. He stated that it is unlikely in the extreme that he in the future would have access to restricted substances. The Tribunal has no evidence to support such a suggestion and therefore rejects that suggestion.
8. The Tribunal rejects the suggestions by the Respondent that he had not been involved in any inappropriate behaviour since the events which led to this complaint because the Tribunal has found in its deliberations in Stage 1 of the hearing that the Respondent is a person who has lied, who has stolen and who has sought to provide explanations which at best were explanations which could not possibly be accepted by the Tribunal.
9. In addition, in the Respondent's claim that he had not been involved in any inappropriate behaviour, the Tribunal rejects that suggestion as the Respondent, while he was out on bail with conditions imposed on his bail that he would not be permitted to enter any premises which sold alcohol the Respondent went to a pub where he ordered a beer. He explained that he required to access some money to give to his mother. The explanation which he gave as to why he went to the pub was that he was not able to do that in some other environment.
10. The Tribunal cannot accept that explanation. That was a transgression of the Respondent's bail conditions and coupled with the theft of Propofol from his employer, the unacceptable explanation that he gave for why he stole the Propofol and the breach of a condition of his bail indicates to the Tribunal that he is a person who has a disregard for the law and accordingly the Tribunal is concerned that access to the public in a health environment constitutes a significant risk to the public in the future.
11. The Respondent has submitted that the Respondent should not be deemed to be a risk to the public as the only person affected by the assault was Person A, the then wife of the Respondent. The Tribunal does not accept this submission because in fact the Respondent was responsible for assaulting his first wife as well. Both Person A and his first wife are members of the public.
12. The Tribunal is satisfied that the Respondent should not be allowed to be exposed to members of the public in the health environment and particularly persons who are vulnerable in the health system who require help and support.
13. In the circumstances the Tribunal is satisfied that a prohibition order should be granted.
14. In respect of costs the Tribunal has considered the areas raised by the Respondent in terms of which he suggests that the normal procedure of costs following the result should be varied. The Respondent has sought to claim that the Applicant has behaved inappropriately and failed to act as a model litigant. The Tribunal rejects this position. The main area of complaint by the Respondent in respect of a costs order is to the effect that the Applicant having advised the Respondent that all relevant information had been provided to the Respondent and then two days before the hearing provided additional information including CCTV and other material and that that caused the Respondent considerable expense in having to deal with that information.
15. The Tribunal rejects that argument since irrespective of when that information was provided the Respondent would have had to review that material and prepare to deal with that material in the hearing. The Respondent was in a position to call for an adjournment of the hearing in order to give the Respondent additional time in which to review that material. The Respondent, in the interest of avoiding further delay chose not to have an adjournment and the matter proceeded to hearing.
16. It is correct that the issues around the new evidence being admitted did waste one day of the hearing and accordingly the Respondent should be entitled to its costs wasted for that day.
17. In the circumstances the request for a 50% reduction in the Applicant's costs is excessive and the Tribunal will order payment of the Applicant's costs by the Respondent less the costs of one day wasted in the hearing.

1. The Tribunal therefore makes the following orders:

(1) The registration of the Respondent as a nurse is cancelled pursuant to s149C(1)(d) of the National Law.

(2) The Respondent may not seek a review of the order cancelling his registration for a period of three years from the date of these orders pursuant to s149C(7).

(3) The Respondent is prohibited from providing health services for a period of three years from the date of these orders pursuant to s139C(5)(a) of the National Law.

(4) The Respondent is to pay the Applicant's costs of the proceedings less the wasted costs incurred by the Respondent for one day during the hearing.

(5) The order made pursuant to s64(1)(a) of the Civil and Administrative Tribunal Act 2013 restricting the publication of the name of Person A referred to in this decision is continued.

AI hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

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.