Health Care Complaints Commission v Tsolis

(1) Complaint One established, namely that the practitioner was guilty of unsatisfactory professional conduct under s 139B(1)(a) of the National Law in that he engaged in conduct that demonstrates the judgement possessed, or care exercised, by the practitioner in the practise of psychology is significantly below the standard reasonably expected of a practitioner on equivalent level of training or experience;

(2) Complaint Two, established, namely that the practitioner was guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law in that he engaged in improper or unethical conduct relating to the practice or purported practice of psychology; and

(3) Complaint Three established, namely that the practitioner was guilty of professional misconduct under s 139E of the National Law.

1. A "Stage Two" hearing was held on 13 May 2025. For the reasons published on 21 August 2025 (Health Care Complaints Commission v Tsolis (No 2) [2025] NSWCATOD 110) (Stage Two Decision), the Tribunal ordered that:

(1) the practitioner's registration as a psychologist be cancelled pursuant to s 149C(1)(b) of the National Law;

(2) any application for review of that order not be made for 12 months.

1. The practitioner subsequently sought a stay of the protective orders made on 21 August 2025. After a hearing on 25 August 2025, for the reasons published on 26 August 2025, (Stay Decision), the Tribunal dismissed that application.
2. These reasons deal with the costs of the proceedings.
3. In all Decisions, costs were reserved.
4. In the Stage Two Decision, the Tribunal stated:

Costs

158 The Commission has already sought an order that it be paid 80% of its costs of the proceedings.

159 The practitioner appears to oppose that order, submitting that given the complexity of the proceedings, the fact that a number of very serious allegations were withdrawn or not established, some of which ought never to have been pressed.

160 The practitioner's counsel submits that the nature and extent of "the event" is unknown until such time that the Tribunal has published its reasons for decision and, without those reasons, the practitioner cannot be properly advised as to a position "available on costs".

161 The practitioner further submits that the Commission's position on costs is presently untenable, seeking in substance a "broad brush" rate of 80% of its costs without providing the Tribunal or the practitioner any basis on which the Tribunal could assess the reasonableness or proportionality of the costs sought: Romanos v Punjabi Fusion Group Pty Ltd (No 2) [2023] NSWSC 1395 at [9].

162 As the Tribunal noted in Health Care Complaints Commission v Gahan (No 2) [2021] NSWCATOD 66 at [13(7)], a court or tribunal may deprive the successful party of the costs relating to an issue on which the successful party lost when that issue was clearly dominant or separable: Monie v Commonwealth of Australia (No.2) [2008] NSWCA 15 at [64].

163 The Tribunal further noted (at [14]), that that principle:

... was the subject of discussion by the Tribunal in Health Care Complaints Commission v Emery (No. 2) [2017] NSWCATOD 23 at [11]-[19]. In summary:

(1) unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed;

(2) exercising the discretion as to costs on an issue by issue basis can produce complexity and disputation; in determining the proper costs, the appropriate approach is a broad-brush approach: Harrington Estates (NSW) Pty Ltd t/as Harrington Grove Country Club v Turner [2016] NSWCA 369 at [72]; Doppstadt Australia Pty Ltd v Lovick & Son Developments There were three complaints made by the Commission in its Complaint dated 4 June 2021.

1. For the following reasons, the practitioner is to pay 70% of the applicant's costs as agreed, or as assessed under the applicable costs legislation.

1. These reasons assume a knowledge of the Stage One, Stage Two and Stay Decisions.
2. There were three complaints made by the Commission in its Complaint dated 4 June 2021.
3. The background to all complaints was:

The practitioner was first registered as a psychologist in NSW on 12 January 2010.

The practitioner is employed as the Principal Clinical Psychologist at Insight Psychology Group, Five Dock ("the practice") and has held this position since January 2010.

Patient A is a 40 year old female.

Patient A was referred to the practitioner by her General Practitioner on 20 April 2016 for opinion and psychological management under a Mental Health Plan.

Patient A first consulted with the practitioner on 22 April 2016.

1. Complaint One is that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(a) of the National Law in that he engaged in conduct that demonstrates the judgement possessed, or care exercised, by the practitioner in the practice of psychology is significantly below standard reasonably expected of a practitioner on equivalent level of training or experience.

1. The particulars of Complaint One were as follows:

1. On more than one occasion, during consultations at the practice between 22 April 2016 and 18 July 2017 the practitioner failed to maintain appropriate professional boundaries with Patient A in that he:

(a) referred to Patient A as "kid"/and "my love",

(b) allowed Patient A to refer to him as "boss;

(c) commented on Patient A's physical appearance by calling her "beautiful";

(d) commented on Patient A's personal attributes by calling her "intelligent";

(e) asked Patient A to comment on his physical appearance, including his:

(i) haircut;

(ii) beard;

(iii) clothing;

(f) inappropriately disclosed personal information about:

(i) his pregnant wife;

(ii) his new child;

(iii) how many sexual partners he had.

2. Between 28 April 2016 and 23 May 2017, the practitioner failed to maintain appropriate professional boundaries in that he exchanged the following number of 'out-of-session' telephone calls and text messages with Patient A in circumstances where the amount of contact was excessive in the context of the therapeutic relationship and some of the communication was personal in nature:

(a) 122 telephone calls initiated by Patient A;

(b) 137 telephone calls initiated by the practitioner:

(c) 82 text messages sent by Patient A;

(d) 53 text messages sent by the practitioner.

(1) admitted Particular 1(a) in so far as he referred to Patient A as "kid". However, during the course of the hearing the practitioner said that he did call Patient A "my love", but on no more than one occasion;

(2) admitted Particulars 1(b), (c), (d);

(3) denied Particulars 1(e) and (f);

(4) admitted each of Particulars 2(a) to (d).

1. In his Reply, the practitioner denied Particulars (1), (2), (3), (4) and (7).
2. In the Stage One Decision, we found:

(1) each of Particulars 1(a) to (d) established;

(2) Particulars 1(e) and (f) not established;

(3) each of Particulars 2(a) to (d) is established.

1. Complaint Two was that the practitioner was guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law in that he engaged in improper or unethical conduct relating to the practice or purported practice of psychology.

1. The particulars of Complaint Two are set out below:

1. At the end of a number of consultations at the practice between 22 April 2016 and 18 July 2017 the practitioner failed to maintain appropriate professional boundaries in that he:

(a) touched Patent A's thighs;

(b) kissed Patient A's forehead;

(c) hugged Patient A.

2. On more than one occasion, during consultations at the practice between 22 April 2016 and 18 July 2017, the practitioner failed to maintain appropriate professional boundaries in that while hugging Patient A he would ask her about his erection.

3. On more than one occasion, during consultations at the practice between 22 April 2016 and 18 July 2017, the practitioner failed to maintain appropriate professional boundaries in that he:

(a) advised Patient A that he was sexually aroused;

(b) said words to the effect that he often had to shift in his seat due to his arousal.

4. On a date between 22 April 2016 and 18 July 2017 the practitioner failed to maintain appropriate professional boundaries with Patient A in that he:

(a) inappropriately requested that Patient A send, by text message, a photo of her lower back tattoo to him;

(b) inappropriately viewed a photo of patient eyes lower back tattoo that was sent my text message to the practitioner by Patient A.

5. On 9 July 2016, the practitioner failed to maintain appropriate professional boundaries in that he inappropriately took Patient A need to dinner at Bathers Pavilion in Mosman in circumstances where:

(a) the practitioner was Patient A's treating psychologist;

(b) alcohol was consumed by the practitioner and Patient A;

(c) the practitioner inappropriately kissed and touched Patient A during dinner;

(d) the practitioner inappropriately kissed and touched patient a in the Uber car ride back to her residence in Russell Lea.

6. On 9 July 2016, following dinner at Bathers Pavilion in Mosman, the practitioner failed to maintain appropriate professional boundaries in that he engaged in sexual intercourse with Patient A at her home in circumstances where:

(a) the practitioner gained entry into Patient A's home by requesting to use the toilet;

(b) upon exiting the toilet in Patient A's home, the practitioner entered Patient A's bedroom and started to kiss and touch her;

(c) Patient A said to the practitioner words to the effect of "what is happening",

(d) the practitioner responded with words to the effect of "what am I supposed to tell my wife. I have the night off and told my wife I won't be home";

(e) Patient A did not want to have sexual intercourse with the practitioner;

(f) the practitioner asked Patient A if he could ejaculate inside of her;

(g) after/engaging in sexual intercourse, Patient A asked the practitioner to leave her house.

7. On a date after 9 July 2016, during a telephone conversation with Patent A, the practitioner inappropriately:

(a) asked Patient A how her finances were going;

(b) spoke about a previous offer to pay for Patient A's $850 drug debt and retracted the offer;

(c) accused Patient A of being in more debt than she was;

(d) called Patient A a "sex worker" with reference to the evening of 9 July 2016, namely the dinner at Bathers Pavilion and the sexual intercourse that occurred.

8. By reason of Particulars (1) to (5), individually or in any combination, the practitioner engaged in inappropriate conduct of a sexual nature towards Patient A.

9. On 22 January 2018, the practitioner provided false and/or misleading information to the Psychology Council of New South Wales, namely he denied consuming alcohol at dinner with Patient A at Bathers Pavilion in Mosman on 9 July 2016 when he had consumed alcohol at dinner on that occasion.

1. Particulars (6) and 7(d) were withdrawn during the Stage One hearing.
2. In the Stage One Decision, we found:

(1) each of Particulars (1)(a) and 1(b) are not established, and Particular 1(c) established;

(2) each of Particulars (2), (3), (4) and 7 not established;

(3) Particulars (5)(a), (b) and (d) established;

(4) Particular 5(c) is not established,

(5) Particulars (8) and (9) are established.

1. Complaint Three was that the practitioner was guilty of professional misconduct under s 139E of the National Law in that he had:

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

(2) 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.

(1) Particulars 1, 2, 3, 5, and 8 of Complaint Two individually;

(2) Complaints One and Two and the particulars thereof cumulatively.

1. In his Reply, the practitioner denied Complaint Three.
2. In the Stage One Decision, we found Complaint Three proved.

1. As noted, at the Stage Two hearing, the Commission had submitted that the Tribunal make an order that the practitioner pay it 80% of its costs. In brief pre-hearing submissions, the Commission:

(1) submitted that the primary purpose of an award of costs is to indemnify a successful party. With "the commencing position [being] that costs follow the event so that a successful party is entitled to costs": Yargi v Permanent Custodians Ltd (No 2) [2007] NSWCA 306 at [24];

(2) submitted that the Commission had alleged, successfully, that the practitioner was guilty of both unsatisfactory professional conduct and professional misconduct and "successfully prosecuted the majority of its complaint";

(3) accepted that it withdrew Particulars (6) and 7(d) of Complaint Two, following the evidence of Mr Rehaan.

1. In the circumstances, the Commission submitted that it was appropriate to reduce the amount of costs sought to 80% of the Commission's costs as agreed or as assessed.
2. Accordingly, the Tribunal set a timetable for the filing of submissions as to costs.

1. That order was opposed by the practitioner. In summary, the practitioner submits:

(1) the Commission was only partially successful;

(2) in bringing its application, the Commission made and maintained allegations which were false and unjustified. Those allegations were serious. The most serious of those allegations, being sexual assault, was withdrawn after the Commission resisted an application for summary dismissal.

1. Accordingly, the practitioner submits that the Commission is not entitled to costs or should face a "significant diminution" of their entitlement to costs of the proceedings.
2. The practitioner notes that the Commission sought a two to four year cancellation with additional prohibition orders reflecting the same period. He submits that Commission has been unsuccessful on that application, and that the duration of the cancellation and prohibition orders (being up to four years) was necessarily underpinned by the allegation contained within the particulars in the Commission's application. The practitioner submits that the Commission has been unsuccessful on the most serious allegations made against him which ought never have been brought.
3. The practitioner submits that the Commission was unsuccessful of very serious allegations made him, and that even after a period of investigation, the Commission brought and maintained allegations against him for which the Commission had obtained exculpatory information. The practitioner submits that the following factors warrant a significant diminution in the Commission's entitlement to costs:

(1) the Commission interviewed the taxi driver, Mr Rehaan,[1] and its officer, Ms Hine, prepared two file notes dated 19 May 2020 and 10 July 2020;

(2) the file notes were not disclosed to the practitioner until 17 November 2021;

(3) a draft statement of Mr Rehaan was prepared which "categorically removed the possibility of the sexual assault allegation been proven against the practitioner";

(4) Ms Hine never gave affidavit evidence in the proceedings, and the Commission refused to summons Mr Rehaan until part way through the first day of the Stage One hearing;

(5) By February 2020, the Commission had been furnished with a report of Prof Reg Coutts who had given expert evidence in respect of telecommunication records and data analysis. The core of that report made the allegations against the practitioner in respect of sexual assault "improbable at best";

(6) by 12 June 2020, Dr Kenny had furnished the Commission with a report which ought to have cautioned the Commission about the veracity of Patient A's historical recollections, as Dr Kenny had stated:

an addiction of this magnitude cannot be contained in the way asserted by miss child, so one could reasonably conclude that she was a poor historian who manipulated reality to suit her purposes. ...

at this point, the mutual idealization is breaking down. In borderline personality organisations, the previously idolised figure is denigrated and feelings of vengefulness emerged towards the individual who had caused the narcissistic injury.

19 It is regrettable that, despite having in their possession: (a) exculpatory evidence; (b) evidence that made significant portions of patient A's version of events inherently improbable; and, (c) expert evidence of Dr Kenny who cautioned against the historical recollections of Patient A, the Commission chose to put forward several serious allegations against the practitioner which were either withdrawn or not proven.

20 The Tribunal found that it should not accept patient A's version of events unless there was corroborative material5. Patient A was identified by the Commission's own expert witness ... as an unreliable historian. The Tribunal could not accept any uncorroborated evidence from patient A and yet, The Commission saw fit to put Patient A's allegations in full against [the practitioner]. Despite having in their possession exculpatory evidence of the most serious allegation.

21 The material result is: (a) wasted costs and time of the practitioner; (b) The finite legal resources of the Practitioner were absorbed in large part by the preparation of defending the most serious allegations as a priority; (c) The 5-day listing could have been narrowed significantly before the hearing; (d) The Stage 1 hearing was drawn out, amplifying the harrowing experience for the practitioner; (e) The public resources of the Tribunal were not used efficiently.

22 The seriousness of the Commission's unfortunate decision to press those untenable, false and vexatious allegations against [the practitioner] are illustrated when seeing those allegations that were either not proven or withdrawn.

1. The practitioner then sets out the "very serious allegations" that were either withdrawn by the Commission after the five-day listing had commenced or not proven. The practitioner submits that that list of withdrawn and unproven allegations illustrates the extensive and unique failings of the Commission warranting a significant reduction in the Commission's to costs.
2. The practitioner submits that, "on any view", the maintenance of the allegation of sexual assault was a departure from the Commission's obligations as a model litigant, which ought to disentitle the Commission from their costs, or be reflected in a significant reduction in recoverable costs.
3. The practitioner submits that the Commission ought not be recovering costs for any matter he assisted with or admitted to.
4. The practitioner notes that the Commission seeks 80% of its costs, but submits that there is no material before the Tribunal that would warrant an exercise of discretion for an award of that magnitude.
5. In the circumstances, the practitioner submits that the Commission ought to identify the costs said to have been incurred, so that he can properly respond and the Tribunal can exercise its statutory power judiciously. The practitioner submits that the Commission has not identified, even in broad terms, what costs have been incurred, what costs are attributable to corresponding works or whether those costs were reasonable or reflect matters for which the Commission was unsuccessful. By way of example, he submits that it would be a significant injustice to him should costs of the summary dismissal application be sought: Stage One Decision, at [21]-[23].
6. In summary, the practitioner submits that there ought to be no costs order.
7. However, if the Tribunal considers it appropriate make an order of costs a broad-brush approach, that broad brush approach ought reflect the following:

(1) the Commission was not successful on the principal orders sought of a two to four year cancellation with prohibition orders;

(2) the Commission was not successful on the most serious of allegations;

(3) the Commission conducted the proceedings in a way that departed from its model litigant obligations;

(4) the Commission made and maintained unjustified or false allegations;

(5) the practitioner made several key admissions which greatly reduced the time required at hearing;

(6) the duration of the Commission's evidence at hearing was exacerbated by Patient A's indulgences (for instance to go to the gym) whilst she was still in cross examination;

(7) the Commission has not identified, even in broad terms, what costs have been incurred, what costs are attributable to corresponding works or whether those costs were reasonable or reflect a matter for which the Commission was unsuccessful.

1. In conclusion, the practitioner submits that the "appropriate broad-brush range", without having seen any attribution of costs to work performed, is 25% - 40% of the costs incurred.

1. In summary, the Commission makes the following submissions in reply.
2. First, it was the successful party in the litigation, with the result that the practitioner should pay its costs: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42].
3. Secondly, a different costs order may be made where "discrete elements of the conduct complained of are not established", or where a respondent establishes "disentitling conduct ... on the part of the Commission": Philipiah at [42], [45]).
4. Thirdly, the mere fact that the successful party failed on some issues does not mean that it should not get all of its costs. The costs of a successful party on an issue on which it was unsuccessful are normally only not awarded where "a particular issue or group of issues is clearly dominant or separable": Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 at [18]).
5. The Commission withdrew two Particulars of one of the complaints including, significantly, an allegation that he had sexually assaulted Patient A. As those particulars were withdrawn at the commencement of the hearing (and which withdrawal had been foreshadowed by the Commission to the respondent prior to the hearing, subject to Mr Rehaan providing evidence consistent with his prior statements), no hearing time was lost on that Particular.
6. In any event, and even if no particular as to that sexual assault was alleged, the issue would necessarily have to be traversed as it formed part of Patient A's evidence as to the events of the night. Indeed, following withdrawal of the particular, Patient A was nonetheless extensively cross-examined on her evidence of the sexual assault, as a key element of the respondent's case was that Patient A's evidence on that issue should be disbelieved, and as a consequence the remainder of her evidence should be rejected.
7. Fourthly, the allegation that the practitioner had engaged in sexual intercourse with Patient A at her home was withdrawn on the first day of hearing, following Mr Rehan's adoption on oath of material parts of the information he had previously provided to the Commission (but which he had not at any stage formalised by way of an evidentiary statement despite numerous follow up attempts by the Commission). Otherwise, the only aspect of the practitioner's conduct that the Commission was not successful on was the allegation concerning the telephone conversation after 9 July 2016.
8. Fifthly, the practitioner denied a substantial number of underlying facts to these allegations, and that he had engaged in either unsatisfactory professional conduct and professional misconduct.
9. Sixthly, in the Stage Two proceedings, the Commission sought the cancellation of the practitioner's registration, and the imposition of a two year (or in the alternate one year period) during which time he could not re-apply for registration. In broad terms, the Tribunal accepted the Commission's contentions, and ordered the cancellation of the practitioner's registration with a preclusion period of one year.
10. Seventhly, the Commission denies that the expert evidence of Professor Coutts was wholly exculpatory as to the sexual assault particular, and considers that the time stamps were ambiguous as to the amount of time spent by Mr Tsolis in the vicinity of Patient A's home.
11. Eighthly, the Commission maintains that in circumstances where:

(1) there was objective material establishing conduct that was prima facie seriously inappropriate, that is, that a treating practitioner had taken a highly vulnerable patient with alcohol use issues to a social dinner and bought her alcohol;

(2) the practitioner had prima facie misled the Council (having not raised the alcohol consumption despite being expressly asked);

(3) Patient A had provided sworn evidence as to the sexual assault, and other aspects of her complaint were corroborated by objective material; and

(4) Mr Rehaan was for reasons unknown not contactable, and appeared to be refusing to adopt a sworn statement,

it was reasonable of the Commission to maintain that allegation until such time as Mr Rehan gave sworn evidence as to the events in question.

1. In any event, Mr Rehan's evidence was also relevant to the allegations as to intimate contact in the Uber ride to Patient A's home and his appearance was therefore relevant to other factual issues in contest.

15 Depending on the nature of the litigation the "event" may be characterised in more than one way. The authorities were reviewed by Ward J in Australian Receivables Ltd v Tekitu Pty Ltd [2011] NSWSC 1425 at [24]- [26], [54]-[60]. Generally the "event" refers to the event of the claim or counterclaim, as the case may be, and may be understood as referring to the practical result of a particular claim: Windsurfing International Inc v Petit [1987] AIPC 90-441 at 37,861-37,862 (Waddell J). ...

17 The usual circumstance in which a court will deprive the successful party of the costs relating to an issue on which the successful party lost is when that issue is clearly dominant or separable: Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15 at [64] (Campbell JA). See also Waters v PC Henderson (Australia) Pty Ltd [1994] NSWCA 338; 254 ALR 328 at 330-331 (Mahoney JA).

18 The principles governing the making of an order as to costs so as to reflect the time taken in dealing with a particular issue in which the successful party in the proceedings or on the appeal did not succeed were reviewed by this Court in Elite Protective Service Pty Ltd & Anor v Salmon (No 2) [2007] NSWCA 373, and summarised in Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 at [38] (Beazley, Ipp and Basten JJA), as follows:

· Where there are multiple issues in a case the Court generally does not attempt to differentiate between the issues on which a party was successful and those on which it failed. Unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed: Waters v PC Henderson (Australia) Pty Ltd.

· In relation to trials it has been said that it may be appropriate to deprive a successful party of costs or a portion of the costs if the matters upon which that party was unsuccessful took up a significant part of the trial, either by way of evidence or argument: Sabah Yazgi v Permanent Custodians Limited (No 2) [2007] NSWCA 306 at [24]. A similar approach is adopted on appeal.

· If the appellant loses on a separate issue argued on the appeal which has increased the time taken in hearing the appeal, then a special order for costs may be appropriate which deprives the appellant of the costs of that issue: Sydney City Council v Geftlick & Ors (No 2) [2006] NSWCA 374 at [27].

· Whether an order contrary to the general rule that costs follow the event should be made depends on the circumstances of the case viewed against the wide discretionary powers of the court, which powers should be liberally construed: State of New South Wales v Stanley [2007] NSWCA 330 at [18] per Hislop J (with whom Beazley and Tobias JJA agreed).

· A separable issue can relate to "any disputed question of fact or law" before a court on which a party fails, notwithstanding that they are otherwise successful in terms of the ultimate outcome of the matter: James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [34].

· Where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion and mathematical precision is illusory. The exercise of the discretion depends upon matters of impression and evaluation: James v Surf Road Nominees Pty Ltd (No 2), citing Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd [1993] FCA 259; (1993) 26 IPR 261 at 272."

19 Where there has been a mixed outcome in the proceedings, and it is appropriate to entertain the process of apportioning costs as between different issues in the proceedings, in general such an exercise will be carried out on a relatively broad brush basis, and largely as a matter of impression and evaluation by the Court: James v Surf Road Nominees Pty Ltd (No 2) at [36]; Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20 at 22. ...

(the underlined passages are the emphasis of the Commission; the double underlined passage is the emphasis of the Tribunal)

1. Neither party opposed the Tribunal 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: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 50(2).
2. In this respect, I note that in Westerweller v The Owners Strata Plan No 18482 [2023] NSWCATAP 113 the Appeal Panel stated at [85] that:

[i]t is the experience of the Appeal Panel that costs decisions in the Consumer and Commercial Division and on appeal (unless dealt with at the time of the hearing) are routinely considered "on the papers", and without a hearing. The parties were given an opportunity to provide written submissions and did so. They can be presumed to have included all relevant issues in their written submissions.

1. That principle applies equally to proceedings in the Occupational Division: Kollias v Pharmacy Council of NSW (No 2) [2024] NSWCATOD 198 at [21].

Costs of the proceedings, other than the practitioner's application for a stay of the Stage Two Decision

1. This is a costs jurisdiction. As Meagher JA stated in Qasim v Health Care Complaints Commission [2015] NSWCA 282 (McColl and Ward JJA agreeing):

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)

1. In Health Care Complaints Commission v Philipiah [2013] NSWCA 342 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.

1. Applying those principles, the starting point is that the Commission was the successful party. I agree with the Commission that, in broad terms, the Tribunal accepted the Commission's arguments, finding that the practitioner was guilty of unsatisfactory professional conduct under s 139B(1)(a) and (l) of the National Law, and guilty of professional misconduct under s 139E of the National Law.
2. Nevertheless, both parties accept, as do I, that it is appropriate to discount to the costs to be awarded to the Commission, the Commission accepting 20% as the appropriate amount, the practitioner submitting that the discount ought to be in the range of 25% to 40%.
3. I pause to note that I reject the practitioner's primary submission that there be no order as to costs. Such an approach is entirely inconsistent with the authorities that bind me: see Qasim at [85]; Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48] - [52]; Philipiah at [42].
4. And I further reject the practitioner's submission that the Commission ought not be recovering costs for any matter he assisted with or admitted to. The Tribunal has regularly, and usually, awarded costs against a practitioner even when the practitioner has made full and frank admissions of their conduct the subject of complaints and admitted the complaints themselves. For recent examples of the Tribunal doing so, see Health Care Complaints Commission v Caruana [2024] NSWCATOD 13 (where the practitioner did not appear) and Health Care Complaints Commission v Caruana (No 2) [2024] NSWCATOD 36; Health Care Complaints Commission v Tran [2024] NSWCATOD 1; Health Care Complaints Commission v Mai [2023] NSWCATOD 120; Health Care Complaints Commission v Reyes [2023] NSWCATOD 57.
5. Applying the principle that where it is appropriate to entertain the process of apportioning costs as between different issues in the proceedings, in general such an exercise will be carried out on a relatively broad brush basis. My impression and evaluation is that the discount should be somewhat more than that submitted by the Commission, but somewhat less than the top of the range suggested by the practitioner.
6. In my view, the appropriate discount should be 30%.

1. However, that proposed costs order does not include the costs of the practitioner's unsuccessful application for a stay of the Stage Two Decision. That was a completely separate issue, and one in which the practitioner was unsuccessful, for the reasons published at the time.

1. The Commission's submissions dated 9 September 2025 as to costs were very brief. The Commission submitted that:

(1) as there had been no disentitling conduct by it which would displace the usual rule that costs of disciplinary proceedings before the Tribunal will follow the event: Philipiah at [42]-[43];

(2) that principle also applies to the stay proceedings, which are "inexorably connected" with the disciplinary proceedings giving rise to the orders sought to be stayed;

(3) it is a well-established principle at common law that a successful party should be compensated for expenses it has been obliged to incur in defending unmeritorious litigation: Northern Territory v Sangare [2019] HCA 25.

1. The practitioner filed lengthy submissions dated 22 September 2025 in response. In summary, the practitioner submitted that the Commission's application should be refused because the Commission has not enlivened the costs jurisdiction of the Tribunal.
2. The practitioner further submits that, even if the jurisdictional threshold had been met, the Commission conveyed itself in a way that would warrant the refusal to order costs in favour of the Commission because:

(1) the material reason for the Tribunal dismissing the application was not advanced before the hearing and was not advanced by the Commission;

(2) the Tribunal's power could have been enlivened had the Commission assisted the Tribunal with consent;

(3) the Commission refused to provide consent or to obtain further instructions at the invitation of the Tribunal;

(4) the application for the stay was not dismissed on merits, rather on jurisdictional grounds.

(1) the application could have been effected with the Commission's consent. The Tribunal expressly invited that Consent at hearing, but the Commission refused;

(2) it was not necessary to defend the stay application. In fact, the Commission was invited to consent to a confined period which could have avoided both the costs of the application as well as this very costs application. The Commission's opposition to the application necessitated a hearing which could have been avoided with the Commission's consent to suspend orders for a confined period. At no time before the hearing did the Commission advance an argument that the Tribunal was without power to grant the stay/suspension;

(3) the Commission now seek to press a costs application having refused to consent to a request from the Tribunal. It would be contrary to the overriding purposes of s 36 of the NCAT Act to now reward the Commission with a costs order in the Commission's favour having refused to consent to the application.

1. As to the "jurisdictional threshold", the practitioner submitted that the relevant costs rule is not found in cl 13 of Sch 5D of the National Law, and the Commission's reliance on Philipiah is misguided. For the reasons set out in its submissions, the practitioner notes that cl 13 of Sch 5D provides that the Tribunal may order a practitioner "at an inquiry or an appeal before the Tribunal" to pay costs. The practitioner submits that the stay application does not fall with cl 13's ambit.
2. However, even if it does, and the Commission has enlivened the Tribunal's jurisdictional threshold,

20 ... the Tribunal must give effect to the overriding purpose when exercising its jurisdiction_._ Specifically, the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings3.

21. In the present circumstances the Commission seek costs of an application that was dismissed because of want of jurisdiction. Not because of the merits of the application. Certainly not on the premise upon which the commission had advanced prior to hearing4. Ultimately a hearing was required because of the Commission's unwillingness to consent to even a 14-day stay of the substantive orders after the practitioner had practiced for some seven and a half years with conditions.

22 The Practitioner does not know of what special circumstances might enliven the Tribunal's jurisdiction. Simply it appears the Commission rely only on a common law position which is not prefaced by the jurisdictional questions raised by the Civil and Administrative Acts 60 [sic]. The Commission's reliance on the common law position is misplaced where the position relies on either s 98 of the Civil Procedure Act, or The National Law Schedule 5D s13, as neither are the same statutory presumption or test to be applied in these proceedings.

23. Even if the common law position (that costs be presumed to follow the event subject to a broad discretion) presumption that costs follow the event was to apply, the presumption out to be diusplaced by the Commission's failure to abide by the Civil and Administrative Tribunal Act s36 and their unwillingness to assist the tribunal with consent to even a 14 day stay. Said conduct arguably departs from the model litigant policy.

1. In brief submissions in reply (dated 29 September 2025), the Commission submits:

(1) regardless of the basis on which the application was dismissed, the Commission was put to the expense of defending it, and should be appropriately compensated.

(2) when the Tribunal queried the jurisdictional basis to make the order sought, the issue was addressed by both parties, and the submissions of the Commission were ultimately preferred;

(3) the futility of the stay application gives weight to the Commission's claim for costs; it would be an injustice for the Commission to bear the costs of defending an application which was without proper basis, and therefore ought not to have been made;

(4) the submissions that the manner in which the Commission conducted itself disentitles it to an order for costs, in that the Commission could have "assisted the Tribunal with consent", is nonsensical in light of the outcome of the application. The Tribunal should reject any suggestion that the Commission had an obligation to cede to the application particularly in circumstances where it had formed the view that the application was unmeritorious and contrary to the public interest;

(5) the practitioner's assertion that Commission staff "refused" to obtain further instructions at the invitation of the Tribunal is false.

1. I will consider the jurisdictional threshold point first. My provisional view, and it is a provisional view as I do not consider that I heard full argument on the matter, is to reject the practitioner's approach. I consider that Commission's extremely short submission on the point, namely that the stay proceedings were "inexorably connected" with the disciplinary proceedings such that the same costs rules must apply, to be correct. In my view, it would be an odd result if the effect of the National Law were that the Philipiah cost principles applied to the substantive disciplinary proceedings, but some other costs rule (namely s 60 of the NCAT Act) applied to ancillary proceedings such as an application for a stay.
2. Therefore, the relevant costs rule is that found in cl 13 of Sch 5D and, in the absence of disentitling conduct or any of the other matters referred to in Phiipiah at [42], the starting point is that "costs follow the event". Therefore, as clearly, the practitioner was unsuccessful in his stay application, he should pay the Commission's costs.
3. Nevertheless, practitioner submits that, even were this case, the Commission should have not have it costs because:

(1) the material reason for the Tribunal dismissing the application was not advanced before the hearing and was not advanced by the Commission;

(2) the Tribunal's power could have been enlivened had the Commission assisted the Tribunal with consent, the Commission refusing to provide consent or to obtain further instructions at the invitation of the Tribunal;

(3) the application for the stay was not dismissed on merits, rather on jurisdictional grounds.

1. I do not consider there is substance in these submissions, either when considered individually or even when considered cumulatively, to warrant an outcome other than an order that the practitioner pay the Commissions costs. The onus is on any applicant to prove that it is entitled to the order it seeks, based on the evidence before a Court or Tribunal and applying the relevant legislation and legal principles.
2. This the practitioner failed to do.
3. I note that, since the time of the Stay Decision, I have had cause to further consider the issue of stays: see Health Care Complaints Commission v Baker [2025] NSWCATOD 170. In that decision, I referred to Wojciechowska v Secretary, Department of Communities and Justice; Secretary, Department of Communities and Justice v Wojciechowska [2025] NSWCATAP 248. Wojciechowska was published on 7 October 2025, that is 12 days after the Stay Decision.
4. Amongst other matters, Wojciechowska is authority for the proposition that, where there is no specific legislative basis to do so, the Tribunal has power to stay proceedings under s 38 of the NCAT Act, being the power to determine its own procedures: see Wojciechowska at [31].
5. I do not criticise myself for failing to anticipate that Wojciechowska would come to that conclusion. However, in Wojciechowska at [31], the Appeal Panel referred to Alexakis v Health Care Complaints Commission [2021] NSWCA 217 at [6]. At [6], the Court of Appeal stated:

... Subject to powers relating to procedures in a particular division, the power to grant a stay may be found in s 36(1) (powers to determine own procedures) and s 51 (power to grant adjournments) of the Tribunal Act. In any event, there is no doubt that the Tribunal had power to grant a stay if satisfied that such a course was appropriate.

1. Had Alexakis been brought to my attention, or had I been aware of the Court's conclusion at [6], the stay application may well have had a different outcome.
2. Be that as it may, the Commission should have its costs, the practitioner having been unsuccessful in the stay application.
3. However, consistent with my ruling in relation to the costs of the substantive proceedings, and for simplicity in the assessment process, these costs should be limited to 70% of the Commission's costs as agreed, or as otherwise assessed in accordance with the applicable costs legislation.

(1) The respondent is to pay 70% of the applicant's costs of the proceedings, including the costs of the respondent's stay application.

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] Mr Rehaan had driven the practitioner and Patient A from Bather's Pavilion to Patient A's home after the dinner: see Stage 1 Decision, at [72]-[81].