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[2026] NSWSC 903
Supreme Court of NSW
2026-07-30
Richardson J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Singh v Health Care Complaints Commission [2026] NSWSC 903
Hearing dates: 11 June 2026 and 24 July 2026
Date of orders: 30 July 2026
Decision date: 30 July 2026
Jurisdiction: Common Law
Before: Richardson J
Decision: (1) Appeal allowed;
(2) Set aside order (1) made by the Tribunal on 8 October 2025;
(3) Set aside order (4) made by the Tribunal on 27 November 2025;
(4) Set aside orders (1) to (4) made by the Tribunal on 24 December 2025;
(5) Remit the matter to the Tribunal, differently constituted, for determination according to law;
(6) Order that the defendant pay the plaintiff’s costs of the appeal incurred up to 31 March 2026 and that each party bear its own costs of the appeal incurred thereafter;
(7) Note that these orders do not prevent the parties from seeking to reagitate the issue of costs of the Stage 1 and Stage 2 proceedings already heard before the Tribunal.
Catchwords: OCCUPATIONS — health practitioners — misconduct and discipline — registered nurse — where disciplinary proceedings commenced by Health Care Complaints Commission — where NSW Civil and Administrative Tribunal made findings of professional misconduct when that allegation was not pleaded — whether Tribunal misdirected itself as to its statutory task COSTS — where summons amended on first day of hearing to vary orders sought and to introduce new ground of appeal — where leave to amend summons resisted by defendant on the ground that the new ground was futile and that any such error would not be material — where error identified in new ground of appeal later conceded by defendant — whether conduct of parties such that costs should not follow the event
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 63, Sch 5 cll 29(2)(b), 29(4)(b), 29(7)(a)
Civil and Administrative Tribunal Regulation 2022 (NSW), cll 9(1), 9(3)
Health Practitioner Regulation National Law (NSW), ss 130(1), 139B, 144, 149C
Cases Cited: Health Care Complaints Commission v Brush [2015] NSWCATOD 120
Jung v R [2017] NSWCCA 24
Sunaust Properties Pty Ltd t/as Central Sydney Realty v Owners - Strata Plan No 64807 [2023] NSWCA 188
Windsor v Health Care Complaints Commission [2020] NSWCA 110
Category: Principal judgment
Parties: Ugendra Singh (Plaintiff)
Health Care Complaints Commission (Defendant)
Representation: Counsel:
C O’Donnell SC / E Vuu (Plaintiff)
S Maybury SC / K Doherty (Defendant)
Solicitors:
McGirr & Associates (Plaintiff)
Health Care Complaints Commission (Defendant)
File Number(s): 2026/27748
Publication restriction: Nil
HER HONOUR: The plaintiff, Mr Ugendra Singh (Mr Singh) was formerly a registered nurse. By Amended Summons filed 19 June 2026, Mr Singh appeals pursuant to Sch 5, cl 29(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) against orders made in relation to two decisions of the New South Wales Civil and Administrative Tribunal (Tribunal):
orders made on 8 October 2025 in respect of a Stage 1 decision finding Mr Singh “guilty” of three Complaints alleged against him by the Health Care Complaints Commission (HCCC) and of unsatisfactory professional conduct and professional misconduct (“S1D” or “Stage 1 decision”): Health Care Complaints Commission v Singh [2025] NSWCATOD 138; and
orders made on 24 December 2025 in respect of a Stage 2 decision cancelling Mr Singh’s registration as a nurse under s 149C(1)(d) of the Health Practitioner Regulation National Law (NSW) (National Law) and prohibiting him from providing health services for a period of three years (“Stage 2 decision”): Health Care Complaints Commission v Singh [2025] NSWCATOD 171.
For the reasons set out below, I conclude, as is common ground between the parties, that Ground 1A of the Amended Summons is made out and that the appropriate course is remitter to a differently-constituted Tribunal.
This appeal is governed by Part 6 of Sch 5 of the CAT Act. As Mr Singh’s case is a “non-lawyer appeal”, it follows that Mr Singh is entitled to an appeal “as of right on any question of law, or with the leave of the court, on any other grounds” under cl 29(4)(b) of Sch 5 of the CAT Act.
At the first day of the hearing of this matter, an issue arose in relation to a slip application that the HCCC had made to the Tribunal in relation to the Stage 1 decision, which meant that the form of the Stage 1 decision that was the subject of the appeal to this Court, and the reasons for it, were unclear (which I discuss at [24]-[41] below). Further, Mr Singh sought, and obtained, leave to amend his summons to add a new ground in respect of the Stage 1 decision. The hearing was accordingly adjourned.
An Amended Summons was then filed on 19 June 2026. A number of grounds were advanced on behalf Mr Singh in relation to the Stage 1 decision (including a new Ground 1A).
“Ground 1A: The Tribunal, in respect of Complaints 1 and 3, misdirected itself as to the correct statutory test by making conclusory findings that the Plaintiff was ‘found guilty of unsatisfactory professional misconduct and professional misconduct’ (on 8 October 2025) or ‘not a fit and proper person to practice as a registered nurse’ (on 27 November 2025).
Ground 1: The Tribunal constructively failed to exercise jurisdiction by failing to engage in an active intellectual process when considering (or alternatively, failed to give proper, genuine or realistic consideration to) the Plaintiff’s clearly articulated arguments, and accordingly, did not discharge its statutory function at law.
Ground 2: The Tribunal erred in law by impermissibly finding that the Plaintiff was not a credible witness on the basis that his evidence (over objection) was ‘inconsistent with the suggestion that he entered into a plea bargain in order to avoid the possibility of being returned to jail’.
Ground 3: The Tribunal erred in law in reaching its decision by ‘weighing up the evidence with its flaws of Person A and the evidence of the Respondent with its flaws’ and in so doing, failed properly, or at all, to determine whether the Defendant had discharged its burden of establishing Complaint 3 in accordance with the principles articulated in Briginshaw v Briginshaw (1938) 60 CLR 336 and Kuligowski v Metrobus (2004) 220 CLR 363.”
In Ground 1A, the reference to 8 October 2025 is to the date the Stage 1 decision was published and the reference to 27 November 2025 is to the date the Tribunal made various orders, purportedly in relation to a slip application that the HCCC made. I address that slip application below.
On 26 June 2026, the HCCC filed a Response to the Amended Summons in which it conceded that Ground 1A was made out, but disputed each of the other alleged errors. A number of grounds were also advanced on behalf of Mr Singh in relation to the Stage 2 decision. However, given I have found that Ground 1A is made out and that the appropriate course is remitter to a differently-constituted Tribunal, I do not need to address those. I note that, because Ground 1A raises only a question of law, leave is not required under cl 29(4)(b). As it is unnecessary to consider Grounds 1 to 3, it is likewise unnecessary to determine whether leave would have been required to appeal on those grounds.
The allegations made by the HCCC against Mr Singh were, in short, as follows:
Complaint One was an allegation made by reference to s 144(a) of the National Law that Mr Singh had been convicted of/been made the subject of a criminal finding for a criminal offence in NSW, with three offences particularised.
Complaint Two was an allegation that Mr Singh had engaged in unsatisfactory professional conduct under s 139B(1)(b) of the National Law in that he contravened s 130(1) of the National Law (by reason of the offences referred to in Complaint One).
Complaint Three was an allegation that, pursuant to s 144(e) of the National Law, Mr Singh is otherwise not a suitable person to hold registration as a nurse. The particulars alleged in relation to Complaint Three related to a single course of conduct on 5 May 2020; namely that Mr Singh deceptively administered Propofol, an anaesthetic, to Person A in particular circumstances.
As is apparent from the previous paragraph, the HCCC did not take the approach, as it sometimes does in the matters it prosecutes, of framing the final complaint by reference to cumulative conduct drawn from the other complaints it has alleged. Rather, Complaint Three was particularised by reference to a discrete course of alleged conduct in relation to the administration of Propofol to Person A, being conduct that Mr Singh denied.
I now give a broad overview as to the way the Tribunal structured its reasoning.
First, under the heading “The Issues”, the Tribunal set out the issues that were in dispute in the Stage 1 hearing. Each of Complaint One and Two were admitted by Mr Singh and, as such, the only dispute at the Stage 1 hearing was whether Complaint Three was made out: SD1 [10]-[11].
I interpose here that in dealing with Complaint Three, in broad terms, the Tribunal was required first, to determine whether it was satisfied of the factual matters alleged in the particulars to the requisite standard (being factual matters that were denied by Mr Singh) and second, to turn its mind to whether those matters rendered Mr Singh “not a suitable person to hold registration as a nurse” (a matter also denied by Mr Singh).
Second, under various headings – being “Applicant’s Evidence”, “Respondent’s Evidence” and “Oral Evidence” – the Tribunal summarised the evidence that had been adduced before the Tribunal: see SD1 [12]-[48].
Third, under the headings “Applicant’s Submissions” and “Respondent’s Submissions”, the Tribunal summarised the submissions that had been relied on before the Tribunal: see SD1 [49]-[66].
Fourth, and significantly, after setting out the foregoing material, the Tribunal arrived at the section of its reasons entitled “Decision and Reasons”: SD1 [67]-[79]. In the first two paragraphs of that section of the reasons, Tribunal stated as follows at SD [67]-[68]:
“[67] The Tribunal having read the evidence contained in all of the exhibits provided to the Tribunal, having heard the evidence presented by the Applicant and the evidence given by the Respondent, having reviewed the various additional documents which were tendered and having considered the submissions made by the Applicant and the Respondent, the Tribunal is satisfied that the complaint made by the Applicant against the Respondent as set out in the Complaints 1 and 2 by admission and therefore require no reasons. In respect of Complaint 3 the Tribunal has come to the conclusion that the Complaint is proven and that the Respondent is guilty of unsatisfactory professional conduct and professional misconduct.
[68] The basis on which the Tribunal has come to that conclusion is that the Tribunal noted the submissions by the Applicant and the Respondent that the onus of proving the Complaint rests with the Applicant; and that as the version presented by Person A and the version presented by the Respondent are diametrically opposed, it is imperative for the Tribunal to form a view on the two witnesses and to determine whose version of the events the Tribunal finds more acceptable.” (emphasis added)
I interpolate here that the HCCC had not alleged either unsatisfactory professional conduct or professional misconduct against Mr Singh as part of Complaint Three.
I also observe that in the first sentence of SD1 [68], the Tribunal set out the basis on which the Tribunal had come to “that conclusion”. The reference to “that conclusion” must, given the context, be a reference to its conclusion in SD1 [67] that Complaint Three was proven and that Mr Singh was “guilty” of both unsatisfactory professional conduct and professional misconduct. My conclusion in this respect is buttressed by the fact that at SD1 [67] the Tribunal had indicated that it was not giving reasons as to Complaints One and Two as those were admitted.
Fifth, after having indicated at SD1 [68] that it was imperative for it to form a view on the differing version of events regarding Complaint Three as between Mr Singh and Person A, the Tribunal set out its views in relation to the differing version of events, and credibility, of each of Person A and Mr Singh at SD1 [69]-[77].
Six**th, at SD1 [78]-[79] the Tribunal concluded:
“[78] Weighing up the evidence with its flaws of Person A and the evidence of the Respondent with its flaws the Tribunal is comfortably satisfied that the Respondent’s version should be rejected and accordingly, as there was no other possible way in which Propofol could have got into Person A’s body, that the Respondent is guilty of the allegations contained in Complaint 3 and that this is professional misconduct.
[79] That concludes Stage 1 of this matter and the issues relating to the question of orders to be made will be determined after the Stage 2 hearing which has been set.” (emphasis added)
Thus, the conclusion that the Tribunal came to after “weighing up the evidence” was that Mr Singh was “guilty” of the allegations contained in Complaint Three and “that this is professional misconduct”. Again, I interpolate that no allegation of professional misconduct had been made against Mr Singh either in Complaint Three or otherwise.
Finally, I observe that the Orders recorded by the Tribunal are as follows:
(1) The Respondent is guilty of Complaints 1, 2 and 3 and is found guilty of unsatisfactory professional conduct and professional misconduct.
(2) The matter is adjourned to 27 and 28 November 2025 for hearing of Stage 2.
(3) Costs are reserved.
I note in respect of these Orders that unsatisfactory professional conduct had only been alleged in respect of Complaint Two, whereas the form of Orders appears to record that such a finding had been made in respect of all three Complaints.
I have reviewed the submissions filed by the parties before the Tribunal and they did not misstate either the way that the three Complaints were framed or the statutory task the Tribunal was required to undertake and as such, neither party is to be criticised in this respect.
The genesis of the slip rule application before the Tribunal was as follows.
On 9 October 2025, being the day after the Stage 1 decision was published, the HCCC wrote to Mr Singh’s solicitors and stated:
“I refer to the above matter and the Stage 1 decision which was published yesterday. I have identified the following errors in the decision and request your consent to seek amendments to the decision under the slip rule (section 63 of the Civil and Administrative Tribunal Act 2013 and clause 9 of the Civil and Administrative Tribunal Regulation 2013).
• The hearing dates are identified in the decision as 17 & 18 May 2023 whereas my records indicate that the hearings dates were 14, 15 & 16 October 2024 and 30 & 31 January 2025.
• The summary of decision at (1) indicates that the Respondent is guilty of, inter alia, ‘professional misconduct’. The Complaint filed by the HCCC, which is replicated in full at paragraph 2 of the decision, did not include an allegation of professional misconduct.
Would you please provide your consent as a matter of priority.”
“We consent to the variations sought in the judgment.
Tying into your second dot point, we refer to Order 1 of the order dated 8 October 2025 (copy attached), and note the Tribunal has bundled Complaints 1, 2 and 3 together, when 1 and 2 should be distinct from 3 and Complaints 1 and 2 do not allege professional misconduct. Please advise as to the Commission’s attitude to the following variation being made:
- Order 1 of the order dated 8 October 2025 is varied to read:
a. For complaints 1 and 2, the allegations of unsatisfactory professional conduct are found proved against the Respondent; and
b. For complaint 3, the allegation of professional misconduct is found proved against the Respondent.
For efficiency purposes we would suggest the parties write to the Tribunal on both the Stage 1 decision and Order dated 8 October 2025 at the same time.”
In submissions that the HCCC then filed with the Tribunal in relation to the then upcoming Stage 2 hearing, it contended that there were two matters that “should be corrected under the slip rule”.
The first was the relatively inconsequential matter that the hearing dates of the Stage 1 proceedings (as listed on the published reasons for the Stage 1 decision) were wrong.
The second related to the more significant matter that the Tribunal’s orders included a finding of professional misconduct. In relation to this, the HCCC stated in its submissions for the Stage 2 hearing:
“[5] Complaint 3 has been found proven factually. The Tribunal has found that this amounted to professional misconduct. However, Complaint 3 alleges that the factual matters now proven render the Respondent not a suitable person to hold registration as a nurse. It is not alleged to be professional misconduct because it did not occur in the practice of his profession.
[6] The Applicant also submits this should be corrected under the slip rule. Clearly the Tribunal had in mind the correct assertion by the Applicant as it is set out at the beginning of the reasons.”
I refer to this issue in these reasons as the “slip application” in relation to the “professional misconduct issue”.
In submissions filed on behalf of Mr Singh in the Tribunal, his legal representatives indicated that they did “not oppose” the HCCC’s submissions as set out at [29] above.
At the oral hearing of the Stage 2 phase of the proceeding on 27 November 2025, the issue of the HCCC’s slip application was dealt with as follows:
SENIOR MEMBER SHUB: Okay, well, you’ve asked for an amendment to deal with under the slip rule the dates.
MAYBURY: Yes.
SENIOR MEMBER SHUB: Sorry, I’m not sure how that came about.
MAYBURY: I mean, it’s not particularly material obviously. It’s just my instructing solicitor quite – I didn’t pick it up. My instructing solicitor picked it up and it should be corrected. I don’t imagine there’d by an issue with that.
SENIOR MEMBER SHUB: And the second is to – in respect of the complaint three to change the – to state that it’s –
MAYBURY: Not a suitable person. Not a suitable person rather than professional misconduct.
SENIOR MEMBER SHUB: Yes, not a suitable person. Is there any problem with that?
VUU: No, it’s been expressly considered [sic: conceded] I think by my client at para 4 of our written submissions. No difficulty with any of that.
SENIOR MEMBER SHUB: Then we can make that order by consent.
It is common ground that the Senior Member was not directed, either in written or oral submissions, to the terms of s 63 of the CAT Act which sets out, in effect, a form of statutory slip rule that operates in the Tribunal. In particular, the Senior Member was not directed to the criterion in s 63 that the presiding member must be satisfied that there is an “obvious error” in the text of the notice of the decision or the reasons for the decision. The Senior Member was also not directed to any authority dealing with the width of the rule in s 63, and whether the slip application fell within s 63 or some other power the Tribunal had to correct errors. I interpolate in this respect that the width of s 63 was discussed in Sunaust Properties Pty Ltd t/as Central Sydney Realty v Owners - Strata Plan No 64807 [2023] NSWCA 188 at [153]-[159] (Basten JA, Meagher JA agreeing).
Separately, cl 9(1) of the Civil and Administrative Tribunal Regulation 2022 (NSW) had been referred to by the HCCC in its communication of 9 October 2025 to Mr Singh’s solicitors as being a source of power for the Tribunal to correct errors. However, that was not brought to the Tribunal’s attention and, in any event, it is common ground that the requirements of cl 9(3) had not been met.
As set out below, regardless of whether there was a power to correct the errors in response to the slip application that was made, that issue does not arise as the Tribunal, as a procedural matter, did not successfully implement its response to that application. That is for the following reasons.
Later in the day on 27 November 2025, the Tribunal issued the following orders:
“On 27 November 2025 the following orders (and/or directions) were made:
1 The [Stage 2] decision is reserved.
2 Pursuant to s64(1)(a) of the Civil and Administrative Tribunal Act, the publication or broadcast of the name of Person A, is prohibited.
3 By consent, the hearing dates listed are corrected, as per the Applicant’s submission.
4 By consent, accepted that the Respondent is not a fit and proper person to practice as a registered nurse.”
Neither party included these orders in the material filed with the Court as part of the appeal. Nor was the fact that the slip application had been made and purportedly dealt with by the Tribunal adverted to in any written submissions filed with the Court before the hearing. The fact that the Tribunal had made these orders only came to light on the first day of the appeal.
Although it seems to be the case that by Order 4 the Tribunal was purporting to correct errors that had been brought to its attention in relation to the Stage 1 decision, the manner it chose to do so was by making an order that read: “By consent, accepted that the Respondent is not a fit and proper person to practice as a registered nurse”. That form of order did not identify the parts of the reasons and final orders that the Tribunal was purporting to thereby amend or the form that those amendments would take.
Moreover, even if the order made had provided for the implementation of the amendments that the Tribunal envisaged as reflecting Order 4, and the Tribunal had proceeded to publish a revised decision and reasons, that would have involved other errors. These include that:
the criterion of not a “fit and proper person to practice as a registered nurse” set out in Order 4 was not the relevant statutory test (and, as such, involved a further manifestation of the fact that the Tribunal had misdirected itself to the task it ought to have undertaken); and
Mr Singh had on no view “consented” to the proposition that he was not a fit and proper person to practice.
At the hearing of this appeal, Senior Counsel for the HCCC conceded that Order 4 did not in fact implement the slip application that had been made.
Quite apart from the issue as to whether there was power for the Tribunal to make Order 4 on 27 November 2025 in response to the slip application – which I doubt but do not need to decide – the relevant fact for current purposes is that the Tribunal did not cause a different version of the Stage 1 reasons or decision to be published that reflected either Order 3 or 4. As such, the form of the Stage 1 decision that is the subject of this appeal is as originally published on 8 October 2025 (and which I have summarised at [10]-[23] above).
In the Stage 1 decision, the relevant statutory test in terms of Complaint Three was whether Mr Singh was “not a suitable person to hold registration as a nurse”. The Tribunal did not direct itself to that test. Rather, the task it described itself as undertaking was whether it was “comfortably satisfied that [Mr Singh] is not a fit and proper person to remain registered as a nurse”. The language of “fit and proper person” is a concept used elsewhere in the National Law. While there is some overlap between the concepts of being a “suitable person to hold registration” and being a “fit and proper person” they are not identical: see generally, Jung v R [2017] NSWCCA 24 at [56] (Johnson J, Hoeben CJ at CL and Latham J agreeing) citing with approval Health Care Complaints Commission v Brush [2015] NSWCATOD 120 at [68]-[73]; see generally Windsor v Health Care Complaints Commission [2020] NSWCA 110 at [108]-[114] (Gleeson JA, Leeming and McCallum JJA agreeing).
In any event, the allegation of “not [being] a fit and proper person” had not been made by the HCCC against Mr Singh. Nor is it the relevant statutory criteria that would enliven the power to cancel the registration of a health practitioner (see s 149C of the National Law), which the Tribunal then proceeded to exercise as part of the Stage 2 decision.
The Stage 1 decision (both orders and reasons) also contained multiple references to:
findings of professional misconduct, when that had not been alleged; and
findings of unsatisfactory professional conduct, when that had only been alleged in respect of Complaint Two.
Thus, I am satisfied that the Tribunal misdirected itself as to the correct statutory test and that Ground 1A is made out.
Further, as set out at [36] above, on 27 November 2025 shortly after the oral hearing in the Stage 2 phase of the proceeding, the Tribunal made orders apparently purporting to correct its earlier decision by reference to the fact that Mr Singh was “not a fit and proper person”. The fact that this further error occurred after the earlier errors had been drawn to the Tribunal’s attention reinforces the conclusion that the Tribunal did not understand, and had misdirected itself as to, the correct statutory test.
Thus, the Stage 1 decision must be set aside. It is common ground that the Stage 2 decision must also be set aside, given that the errors in relation to Stage 1 inevitably flowed into the approach the Tribunal took to Stage 2.
As to costs, Mr Singh’s primary submission is that the usual rule – that costs follow the event – ought to apply and, in doing so, contends that there is no disentitling conduct on his part.
Mr Singh’s alternative submission is that, should the Court be minded to make a different order as to costs by reason of his late amendment, the Court should order that the HCCC is to pay his costs, up to and including 10 June 2026 (being the day before the hearing) with no order as to costs thereafter, with the intention that each party bears its own costs from that date forward.
The HCCC submits that, having regard to the circumstances, the appropriate costs order is that it pay Mr Singh’s costs up until the time it filed its original Response to Mr Singh’s original Summons (being 31 March 2026) and Mr Singh pay its costs thereafter.
As set out at [24]-[47] above, this matter has followed a complex procedural course, caused in large part by the Tribunal’s errors but also, in my view, compounded by the approach taken by the parties. While Mr Singh is in a general sense, the victor in the proceedings, in my view he is not entitled to all of his costs. For the reasons set out below, I have determined that the HCCC is to pay Mr Singh’s costs up until the time the HCCC filed its original Response to Mr Singh’s original Summons (being 31 March 2026) and thereafter each party is to pay their own costs of the appeal.
First, while Mr Singh has obtained in substance, a large part of the relief he sought at the outset in his original Summons, he has obtained that relief after an issue arose during discussion of the slip application during the first day of the hearing and in relation to which he required leave to make a very late amendment. In this respect, I proceed on the basis that it cannot be said whether Ground 1A would have been the sole basis upon which Mr Singh would have succeeded, as the remaining grounds for relief did not fall to be determined.
Second, given the number and prominence of the errors in the Tribunal’s reasons and orders, it is regrettable that a ground of this nature was not raised until during the first day of hearing in this Court. It was also apparent from the form of the orders made on 27 November 2025 that the Tribunal had not only failed to deal with the slip application properly (as a revised decision and reasons were not published), but also, that when doing so, it had generated further obvious errors.
The question then arises as to whether the fact that the issues underlying Ground 1A were raised so late is a factor relevant to the exercise of the costs discretion in respect of not only Mr Singh, but also the HCCC.
The HCCC submits that this should not affect the exercise of costs discretion in respect of it. It points to the fact that Mr Singh had consented to the slip application being made, and had not raised in his appeal any issue along the lines of what later became Ground 1A, and so says it was entitled to proceed on the basis that he was doing so for strategic reasons, noting he was represented by Senior and Junior Counsel. I do not accept this submission. The Stage 1 decision contained prominent errors that went to the heart of the jurisdiction the Tribunal was purporting to exercise. Given Mr Singh was appealing that decision, it was inevitable that the question of what form the decision took – and the issues ultimately encompassed within Ground 1A –would have to be addressed by this Court, even if the grounds raised had remained as per those in the original Summons. Thus, in my view, even though Mr Singh did not raise these issues until the day of the hearing, it is relevant to my discretion that the HCCC did not raise them either.
Third*,* as the HCCC recognises, while it was appropriate for Mr Singh to bring an appeal, its conduct did not cause the outcome whereby the Tribunal directed itself to the wrong statutory test. That said, once Ground 1A was identified on the day of the hearing, the HCCC formally resisted leave being granted to Mr Singh to plead it, including on the basis that the ground was futile and that any such error would not be material.
Fourth, Mr Singh only abandoned the orders that he had sought (that this Court conduct its own hearing on the merits if it found error, pursuant to Sch 5, cl 29(7)(a) of the CAT Act) on the day of the hearing. While abandoning this relief narrowed the scope of the proceedings and in that sense assisted the Court, the fact remains that, until the first day of the hearing, the HCCC was faced with a Summons and written submissions by which Mr Singh sought a wide range of relief as part of which it contended that the HCCC, and the Court, would have to fully address the merits of a matter that had been heard over six days below.
Fifth, Mr Singh points to the fact that it was the HCCC that brought the slip application in the Tribunal and did not bring to its attention the statutory basis for invoking the rule or any authorities as to the scope of the rule. However, as the HCCC points out, the errors the Tribunal had made in the Stage 1 decision had already occurred by that point. And while the manner in which the slip application was made added to the procedural complexity in this matter, the fact remains that Mr Singh consented to it being made and likewise did not bring to the Tribunal’s attention any principles relevant to whether the slip rule could properly be invoked.
Further, this was an appeal by Mr Singh in relation to a decision of the Tribunal that had been the subject of a slip application, to which he consented, in relation to which orders had been issued by the Tribunal. By those orders, the Tribunal was purporting to amend the decision in respect of which Mr Singh then brought his appeal in this Court. Mr Singh did not include those orders in the material he adduced on the appeal or refer to them in any documents that were filed. If he had done so, there is a better chance that the issues regarding the erroneous conclusions of the Tribunal would have come to the fore earlier in this Court. That said, the HCCC had made the slip application and also did not bring to the Court’s attention the orders that the Tribunal had made until the first day of hearing.
For all of those reasons, in my view, Mr Singh is not entitled to all of his costs in this Court but by the same token the HCCC is not entitled to an order that Mr Singh pay its costs after a certain point in these proceedings.
I have determined that, balancing all of the circumstances, the appropriate order is that the HCCC is to pay Mr Singh’s costs up until the time that it filed its original Response (being 31 March 2026) and thereafter each party is to pay their own costs of the appeal. In short, that division reflects the fact that while it was appropriate for Mr Singh to bring an appeal, the orders that he sought were that this Court conduct its own hearing on the merits if it found error which would have significantly expanded the scope of the proceedings in this Court. That was not abandoned until the day of the hearing. Further, as set out above, shortcomings on both sides added to the duration and procedural complexity of this matter.
The question of the costs of Mr Singh’s application to amend the Summons to add Ground 1A was reserved on the day of that application. The effect of the Court’s cost orders, as indicated, is that those costs, together with all costs incurred after 31 March 2026 are to be borne by each party.
Separately, it is common ground that the costs order made by the Tribunal should be set aside. But that is on the basis that, were the HCCC to prosecute its complaint again before the Tribunal (differently constituted), the parties are not thereby prevented from seeking to reagitate the costs of the Stage 1 and Stage 2 proceedings already heard, depending on the outcome of the remitted proceedings.
I make the following orders:
Appeal allowed;
Set aside order (1) made by the Tribunal on 8 October 2025;
Set aside order (4) made by the Tribunal on 27 November 2025;
Set aside orders (1) to (4) made by the Tribunal on 24 December 2025;
Remit the matter to the Tribunal, differently constituted, for determination according to law;
Order that the defendant pay the plaintiff’s costs of the appeal incurred up to 31 March 2026 and that each party bear its own costs of the appeal incurred thereafter;
Note that these orders do not prevent the parties from seeking to reagitate the issue of costs of the Stage 1 and Stage 2 proceedings already heard before the Tribunal.
**********
Singh
Health Care Complaints Commission
(1938) 60 CLR 336
(2004) 220 CLR 363