Health Care Complaints Commission v Thurlow [2025] NSWCATOD 86;

1. The facts and circumstances leading to the findings and orders made are set out in the Tribunal's principal Judgment[1]. Those orders were in the following terms:

(1) That pursuant to s 149C(4)(a), if the Respondent was still registered the Tribunal would have cancelled his registration.

(2) That pursuant to s 149C(4)(b) the Respondent is disqualified from being registered for a period of (one) year from the date of this order.

(3) That pursuant to s 149C(4)(c) the National Board record the fact that, if the Practitioner was still registered the Tribunal would have cancelled his registration in the National Register kept by the Board.

(4) That any submission on behalf of the Practitioner with respect to the issue of costs be filed and served within 14 days from the date of these orders and any additional submissions or submissions in response to the submissions filed by the Practitioner be filed by the Health Care Complaints Commission within a further 14 days thereafter.

1. The Practitioner will be able to reapply for registration in a little over a month's time.

1. Clause 13 of Schedule 5D to the National Law empowers the Tribunal to order costs. Whether or not an order for costs is to be made is a matter left to the discretion of the Tribunal. However, the general rule is that costs follow the event[2]. Counsel for the Commission contends at paragraph 10 of his submissions that that general presumption "will generally be displaced only where there has been some 'disentitling conduct' by that party." The Tribunal agrees.
2. Both Counsel refer to the passage already cited from the Court of Appeal's decision in Philipiah which reads as follows:

"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 the professional misconduct alleged. Where discrete elements of 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."

1. Counsel for the Respondent analyses the conduct of the proceedings in the following manner in paragraph 5 of his submissions. Referring to the Tribunal's decision he sets out the following:

"(a) complaint 1 was established (this complaint was admitted and not contested) - conviction of 2 driving offences in 2016 and one count of pervert the course of justice in 2020;

(b) complaint 2 was established (this complaint was admitted and not contested) - failing to notify the Board within 7 days that on the 4th May 2017 he was charged with the offence of aggravated sexual assault contrary to s 61J of the Crimes Act 1900 (NSW);

(c) complaint 3 was not established - that the Respondent declaring on his 31st January 2019 Fast Track Application that there had been no change to his criminal history in Australia so as to constitute "[a]ny other improper or unethical condition relating to the practice or purported practice" of the Practitioner's profession within the meaning of s 139B(1)(l) of the National Law;

(d) complaint 4 premised on the late amendment only, was established - the Respondent failing to obtain runoff insurance after he had ceased practising where s 129(1) of the National Law requires a registered health practitioner to not practice the health profession in which the Practitioner is registered unless appropriate professional indemnity insurance arrangements are in force;

(e) complaint 5 was established based on complaints 2 and 4 - a finding pursuant to s 139E of the National Law that the Respondent is guilty of professional misconduct."

1. Subparagraphs (f), (g) and (h) of that analysis set out the orders made by the Tribunal which have already been reproduced in this Judgment.
2. Counsel for the Respondent refers the Tribunal to the decision of the Court of Appeal in Lucire[3]. Two of the paragraphs to which Counsel refers are of particular relevance in these proceedings:

"50 Secondly, the Commission failed to establish each of the particulars pleaded. This aspect is not to be assessed by a numerical calculation of the number of paragraphs of the particulars which were upheld and the number which were rejected. Nor would failure to establish some particulars necessarily result in any diminution of the costs payable to the Commission. However, where it can be said that discrete elements of the conduct complained of were not established it may be appropriate to reduce costs to be recovered by the Commission.

51 In the principal judgment, certain criticisms were made of the manner in which the complaint had been pleaded: [39]-[45]. Similar comments had been made, as noted at paragraph 43 of the principal judgment, well before the present complaint was prepared. The Commission cannot complain that it was not on notice of the need to revise its practices in this respect. These considerations militate in favour of there being some reduction in the costs recovered by the Commission, to allow for aspects of the complaints as to which it was unsuccessful. Again, no precise evaluation is possible."

1. Counsel for the Respondent in his submissions at paragraphs 11-20 sets out a number of complaints and factors with respect to the proceedings which he asserts ultimately should lead to the orders the Practitioner seeks. In the Tribunal's opinion not all of those matters go to the issue of costs. For example, the fact that the Practitioner did not contest complaints 1 and 2 or the underlying facts on which complaint 4 was based go more, in our opinion, to the issue of penalty. The same might be said with respect to the fact that on the Practitioner's behalf it was quite sensibly agreed that a number of matters could be put before us as agreed facts.
2. There are, however, a number of matters raised by Counsel for the Practitioner which do go, in our opinion, to the issue of costs. For example, the matters raised by Counsel in paragraphs 13, 14 and 17 of his submissions. While the Tribunal cannot on the evidence before it make any quantifiable assessment of the amount of costs that Counsel refers to as "substantial" in paragraph 13, it can accurately be said that the series of amendments and their timing were relevant to the work to be done in preparation for the hearing. It is also the case that the Commission was unsuccessful in establishing complaint 3.
3. What has been said to date indicates that the Tribunal agrees with a number of the submissions made on behalf of the Commission. For example, that the Commission was overall successful in establishing professional misconduct and, as we have found, a number of the complaints might properly be considered as matters going to the penalty rather than the costs of the proceedings.
4. Having considered the submissions made on behalf of each of the parties, the Tribunal finds that it is appropriate in this case that the Commission recover a percentage but not all of its costs incurred of and incidental to the proceedings.
5. In the Tribunal's judgement that should be an amount equal to 60% of the Commission's costs.

(1) That the Practitioner meet an amount equal to 60% of the costs of the Commission as agreed or assessed.

I 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.

[1] Health Care Complaints Commission v Thurlow [2024] NSWCATOD 119.

[2] Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at paragraph 42.

[3] Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at paragraphs 48-52.