Soorley v Nursing and Midwifery Council of NSW [2025] NSWCATOD 120;

1. Denial of Procedural Fairness

The hearing under Section 150/150A of the Health Practitioner Regulation National Law (NSW) proceeded on 09/12/2024 without my or my legal representative's participation due to significant technology issues beyond our control. Despite being made aware of these issues, the panel decided to continue the hearing in our absence, depriving me of the opportunity to present my case and respond to the allegations.

2. Failure to Adjourn

The panel failed to adjourn or reschedule the hearing, despite being informed of the technological difficulties I faced. This decision breached the principles of procedural fairness, particularly the right to be heard.

3. Prejudice and Adverse Outcome

The inability to participate in the hearing resulted in an adverse decision against me, specifically unjustified suspension of registration and imposition of totally unnecessary conditions. The outcome has caused significant prejudice to my professional reputation, career, and financial standing. This decision might have differed had I been given a fair opportunity to participate.

4. Inadequate Consideration of Circumstances

The panel did not adequately consider my efforts to resolve the technology issues promptly or the impact of proceeding without my input.

1. The conditions placed on the practitioner's registration were made pursuant to s 150(1)(b) of the Health Practitioners Regulation National Law (NSW) (National Law). That section provides that a Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest, by order impose on a registered health practitioner's registration conditions relating to the practitioner's practising the health profession the Council considers appropriate.
2. On 28 February 2025, the Council determined that pursuant to s 150C(1)(b) of the National Law to remove the conditions on her registration. Section 150C(1)(b) provides that provides that a Council may, at any time alter or remove conditions imposed under this Subdivision 7 (Powers of a Council for the Protection of the Public) of Division 3 (Making Complaints) of Part 8 (Health Performance and Conduct) of the National Law.
3. In those circumstances, the practitioner subsequently indicated that she would withdraw her external appeal, but wished to be heard on costs. This was confirmed by her solicitor, Mr Edwards, at the time of the hearing.
4. These reasons deal with the costs of the external appeal. The practitioner seeks an order for costs. The Council submits that the appropriate order is that there be no order as to costs.
5. For the following reasons, I have decided to dismiss the practitioner's application for costs, and order that there be no order as to costs, with the intent that each party is to bear their own costs of the external appeal.

1. The Council's decision records the following relevant matters.
2. On 13 May 2024, the Council received a complaint about the practitioner from her previous employer at a residential addiction rehabilitation facility. The practitioner was employed at the facility as a night and weekend supervisor. The practitioner's employment at this facility had been terminated at this facility on 17 November 2023.
3. The complainant alleged that the practitioner was advocating use of Psilocybin ("Magic Mushrooms") as a cure for addiction to what the Council described in its decision as "the vulnerable residents" at the facility. The complainant also advised that the practitioner denied the allegations. However, three previous residents and a staff member confirmed the allegations.
4. The Council requested that the practitioner provide a response to the allegations under s 164G of the National Law, but the practitioner did not do so.
5. On 19 August 2024, the practitioner was advised about referral to a health assessment to be held on 29 October 2024. The practitioner was reminded of her professional obligations as a registered nurse under the National Law and the Code of Conduct of the Nursing and Midwifery Board of Australia to comply with the direction of the Council.
6. The practitioner did not participate in any health assessment.
7. On 22 November 2024, the Notifications Committee of the Council considered the matter and resolved to refer the practitioner to being conducted pursuant to s 150 of the National Law for the following reasons:

(1) a health assessment did not proceed as the practitioner did not attend and the practitioner's lawyer was wanting to attend as her support person despite having a conflict of interest, so the Council Directed Health Assessor (CDHA) had terminated the practitioner's assessment.

(2) the practitioner had not fully engaged with Council, including not responding to s164G requests, not attending pre-assessment testing, and not complying with Council directions.

1. On 6 and 9 December 2024, the practitioner provided information to the Council which it considered at the s 150 hearing.
2. The Council decision notes:

An urgent hearing before the delegates of the Council Mark O'Neill, Veronica Croome and Mike Christensen was held on Monday, 9 December 2024. Ms Soorley did not attend the hearing. The proceedings were therefore not recorded. ...

The panel notes that prior to the scheduled hearing before the delegates on 9 December 2024, Ms Soorley advised that she would participate in the hearing and was provided with the link to join the meeting via videoconference along with step-by-step instructions. Ms Soorley responded by indicating that she did not have Microsoft Teams and when advised that she could join through Google Chrome, Ms Soorley replied that she doesn't have Google Chrome.

Ms Soorley was provided with alternate options to join the hearing. She subsequently advised by email that she has never had a computer. It was not apparent to the panel whether Ms Soorley would be joining the hearing from the same or a different location as her legal representative. The panel noted that Ms Soorley's legal representative was able to establish contact as his presence was noted in the virtual lobby. Noting his presence the panel decided to allow Ms Soorley's legal representative to join the hearing. Whilst his presence in the virtual lobby was apparent no audio or visual contact was established despite multiple attempts. Subsequent telephone calls (and voice messages) to Ms Soorley were unanswered.

After a 45-minute delay in attempting to engage with Ms Soorley and / or her legal representative the panel decided to proceed to consider the matter on the papers.

1. The Council's reasons addressed the following issues.
2. First, were there previous complaints in relation to the practitioner?
3. The Council noted that:

(1) on 6 January 2012, a notification was received by the Council as a transfer from Australian Health Practitioner Regulation Agency (Queensland) advising that the practitioner was self-administering nitrous oxide whilst working as a nurse;

(2) the complaint was closed with no further action after the issues were adequately managed by her employer.

1. Secondly, if were there previous complaints in relation to the practitioner, are they reasonable considered to be relevant to the current notification? If so, how were they relevant to the current notification?
2. The answer to each question was "no".
3. Thirdly, what information was there about the practitioner's professional practice?
4. After noting that the practitioner was first registered as a nurse in 1980, the Council further noted that:

Ms Soorley has not provided information related to her work history or work performance. Her current employment status is unknown. Ms Soorley has not provided any information related to her Continuing Professional Development.

1. Fourthly, what information is available about whether the practitioner's professional practice poses a risk to public health and safety?
2. The Council considered that the practitioner failure to engage with the Council in response to the subject matter of the notification, and to respond to numerous approaches from the Professional Officers of the Council, raised concerns for her welfare.
3. The Council also considered that:

In a professional context Ms Soorley's lack of engagement demonstrates an inability to demonstrate responsibility and accountability for her conduct as required by the Standards. Similarly, Ms Soorley's lack of engagement creates uncertainty as to her responsibility and capacity to maintain her physical and mental health to practise safely as required by Principle 7 of the Code of conduct for Nurses (2018).

On the information available the panel is of the opinion that Ms Soorley's professional practice poses a risk to public health and safety.

Ms Soorley's lack of engagement is unfortunate as it frustrates any capacity to engage with her in a remedial context to maintain appropriate standards of conduct.

1. Fifthly, what information is there about the practitioner's health?
2. Here the Council noted that a:

social media blog of 14 September 2022 (Exhibit 32), attributed to Ms Soorley, indicates that she had suffered depression, addictions and suicidal ideations all her life. The social media blog also referenced the traumatic adoption of her first child, the death of her father whilst pregnant at the age of 16 and escalating mental health issues including suicide attempt and hospitalisation. In the social media blog Ms Soorley commented that the commencement of psychedelic therapy' at age 58 ' It reset my brain and gave me, joy, self-love and connection for the first time in my life'. The social media blog also comments that Ms Soorley is committed and passionate to helping others get benefits of psychedelic therapy in a safe environment and sees great potential for palliative care as well.

1. Sixthly, what information was there about whether the practitioner's health concerns are impacting on the practitioner's ability to practise?
2. In the absence of any information related to any diagnosis or treatment for any health conditions, Council was of the opinion that the practitioner's health concerns may impact her ability to practice.
3. Seventhly, what information was available about the treatment the practitioner had sought for any health issues?
4. The Council stated that there was no information available or provided about any treatment the practitioner had sought for any health issues.
5. Eighthly, what information was available about the practitioner's current or proposed work arrangements?
6. Again, Council noted that no information was available.
7. Ninthly, what information is available about the practitioner's support networks?
8. The Council noted that, apart from the fact that the practitioner had engaged legal representation (namely, Mr Edwards), and that in a social media blog she had commented that she was a "mother of four and grandmother to nine", no other specific information had been provided.
9. Tenthly, were the circumstances such that it is otherwise in the public interest that action be taken that affects the practitioner's practice?
10. The Council stated that it considered it was reasonable to be concerned about the practitioner's well-being, but that although the practitioner's circumstances may explain her failure to engage with the Council, they do not excuse it. The Council was critical of the practitioner's failure to engage with it as required and have taken that factor into account in reaching its decision to impose conditions on her registration. While the Council acknowledged statements made by or on behalf of the practitioner, without the benefit of the Council-directed health assessment and any other evidence from the practitioner or information from her treating practitioners, the Council determined it necessary for the protection of the public that conditions be imposed on the practitioner registration.
11. Eleventhly, were there conditions that could be imposed on the practitioner's registration that would (a) sufficiently mitigate any identified risks to the health or safety of the public or (b) would sufficiently mitigate concerns in relation to the public interest?
12. Here the Council stated:

Yes. In so doing the panel invites Ms Soorley to engage with the Nursing and Midwifery Council to enable an appropriate remedial response to her circumstances that may enable her to address any health (or other issues) to safely return to nursing practice.

1. Having regard to its assessment of the information and evidence relevant to these issues the Council concluded that the practitioner posed a risk to public health or safety which requires it to take action, a conclusion made because of the following risk factors:
   • the practitioner had provided a limited response and has not provided a reflection related to the notification;
   • the practitioner had failed to engage with Council, including failing to attend the s 150 hearing, despite being provided an additional 45 minutes after the scheduled commencement time, to participate;
   • the practitioner's repeated failure to engage with Council and information attributed to the practitioner could indicate that there are concerns related to her health;
   • notwithstanding that the practitioner has been registered as nurse for 48 years, the Council had no contemporaneous information to conclude that the practitioner is safe to practice as a nurse, noting in particular her failure to provide requested information;
   • while the Council noted the significant issues related to the practitioner's conduct in failing to provide requested information, the panel is concerned to ensure that the practitioner's health issues need to be addressed as a priority;
   • no specific information as available related to the practitioner's work history or work performance; her current employment status was not known, and no information regarding her Continuing Professional Development had been provided; and
   • while the practitioner had engaged legal representation there was no information about the specific support available to her. The Council was of the view that this risk could be addressed by the imposition of its proposed conditions.

1. I have set these matters at some length, as it is important to understand the role of the Council in s 150 proceedings.
2. In Burton v Osteopathy Council of New South Wales [2015] NSWCATOD 150, the Tribunal considered the appellant's appeal from a decision of the Osteopathy Council of 3 March 2015. The Council was so satisfied that Dr Burton's professional performance appeared to be so unsatisfactory that suspension of his registration pursuant to s 150(1) of the National Law was the only appropriate course to take for the protection of the public.
3. In dismissing the appeal, the Tribunal considered Lindsay v Medical Board of NSW [2008] NSWSC 40. That decision considered s 66 of the now repealed Medical Practice Act 1992 (NSW) which relevantly provided:

(1) The Board must, if at any time it is satisfied that it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied that the action is otherwise in the public interest:

(a) by order, suspend a registered medical practitioner from practising medicine for such period (not exceeding 8 weeks) as is specified in the order, or

(b) impose on a registered medical practitioner's registration such conditions relating to the practitioner's practising medicine as the Board considers appropriate.

1. The respondent Medical Board had submitted that Lindsay was referred to with approval in WD v Medical Board of Australia [2013] QCAT 614 at [8], where the Tribunal set out the proper approach to be taken in what might be described as "immediate action matters". Those principles were:

(1) an immediate action order does not entail a detailed enquiry;

(2) it requires action on an urgent basis because of the need to protect public health and safety;

(3) the taking of immediate action does not require proof of the conduct; but rather whether there is a reasonable belief that the registrant poses a serious risk;

(4) an immediate action order might be based on material that would not conventionally be considered as strictly evidentiary in nature, for example, complaints and allegations;

(5) the mere fact and seriousness of the charges, supported by the untested statements of witnesses, in a particular case, might well be sufficient to create the necessary reasonable belief as to the existence of risk;

(6) the material available should be carefully scrutinised in order to determine the weight to be attached to it;

(7) a complaint that is trivial or misconceived on its face will clearly not be given weight;

(8) the nature of the allegations will be highly relevant to the issue of whether the order is justified.

1. Those principles well summarise the role and approach of the Council when conducting hearings under s 150 of the National Law.

1. Submissions were received from the parties as follows:
   • the practitioner on 24 April 2025;
   • the Council on 6 May 2025;
   • the practitioner in reply on 14 May 2025;
   • the Council in reply on 20 May 2025.
2. I summarise those submissions briefly as follows.

(1) the relevant costs rule is that found in s 60 of the Civil and Administrative Tribunal Act 2013 (NSW). (NCAT Act);

(2) the Council's conduct in the "lead up" to the council hearing warrants the exercise of the Tribunal's discretion in favour of a costs award because:

(a) the Council's withdrawal of the suspension was unreasonable by reason of:

(i) the Council maintaining the suspension for a prolonged period of 94 days, causing significant hardship to the practitioner, before abruptly changing its position a mere week prior to the hearing;

(ii) no new facts, reports, or risk assessments were provided by the Council to justify the timing or rationale of the change in position. There was no explanation as to why the suspension, initially considered necessary, was suddenly lifted without conditions. The practitioner submits that this conduct undermined procedural fairness and caused her to incur legal costs unnecessarily in preparing for a contested hearing;

(b) the practitioner was "Unnecessarily Disadvantaged" by the Council's failure to resolve the matter earlier, when it evidently could have, prolonging the proceedings and unnecessarily disadvantaging her within the meaning of s 60(2)(a) of the NCAT Act;

(c) the "Strength of the Appellant's Case Was Apparent", as the Council's decision to lift the suspension, without seeking any undertakings or conditions, implicitly acknowledged the weakness of its position and supports the view that the suspension was disproportionate from the outset;

(d) "Tribunal Time and Resources Were Wasted". Here the practitioner submits that the late reversal of the Council's position resulted in wasted Tribunal time and resources, particular in scheduling a hearing that became unnecessary, save for the question of costs.

1. In light these matters the practitioner seeks an order that the Council pay her costs of the appeal on the ordinary basis, as agreed or assessed.

(1) the relevant costs rule is to be found in cl 13(1) of Sch 5D of the National Law, and not in s 60 of the NCAT Act;

(2) it did not suspend the practitioner's registration as claimed;

(3) after reciting the practitioner's non-operation with the Council, it was evident that:

(a) the Council determined to give the practitioner every opportunity to participate in its processes;

(b) the practitioner failed to do so, thus contributing materially to the s 150 decision;

(c) no pre-action opportunity was afforded to the Council after the making of its s 150 decision, this appeal was commenced immediately, no s 150A application being made;

(d) the Council has determined to give the practitioner a further opportunity and exercised its powers under s 150C to remove the conditions on her registration;

(e) the Council's consideration of matters regarding the practitioner's registration is ongoing. In particular, a further CDHA is to be scheduled, as are further s 150 proceedings; and

(f) the practitioner has, only recently by her solicitor, indicated a more cooperative attitude to her engagement with the Council;

1. The Council then submits that, against that factual background, whilst it is the case that action by the Council has rendered the proceedings inutile, it is also the case that the proceedings themselves were largely if not entirely occasioned by Ms Soorley's failure to engage with the Council's processes.
2. The Council submits that in Arambewela v Castle Projects Pty Ltd [2018] NSWCATAP 14 at [191]- [201], the Appeal Panel stated (emphasis added):

[19] Where an application or appeal is discontinued there is of course no "successful party". Nonetheless, I accept that in the ordinary course, absent some compelling reason, the discontinuing party should pay the costs of the discontinued proceedings.

[20] Where the initiating application has been determined, the discretion to depart from the "usual rule" will generally only be exercised where there has been some disentitling conduct on the part of the successful party: Oshlak v Richmond River Council at [40], [69]. The decision-maker is not confined to considering the party's conduct in the actual litigation itself, but can take into consideration matters which led up to and were the occasion of litigation: Furber v Stacey & Anor | 2005| NSWCA 242 at [24]. In my view, these principles should be applied in the exercise of the discretion to award costs where the proceedings have been discontinued.

(bold denotes of the Tribunal; underlining is the Council's emphasis)

1. The Council submits that it is therefore relevant to take into account the practitioner's conduct in the lead up to the litigation and the extent to which it contributed to the litigation.
2. The Council submits that:

(1) the practitioner has withdrawn her appeal and in the ordinary course a discontinuing party would pay the costs of the other party, as there has been no hearing on the merits;

(2) there has been a supervening event by the Council rendering the appeal inutile;

(3) contrary to the practitioner's submissions, that supervening event has happened early in the proceedings, and prior to the first directions hearing of the appeal;

(4) it has not acted unreasonably or has relevantly delayed the proceedings.

1. In these circumstances, the Council submits that it is appropriate that there be no order as to costs with the intent that each party bear its own costs, relying on the well known decision of the High Court in Re Minister for Immigration & Ethnic Affairs: Exhibit parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622 per McHugh J.

Submissions of the practitioner in reply on 14 May 2025

1. In these submissions, the practitioner no longer submits that the relevant costs rule is found in s 60 of the NCAT. She agrees that, as submitted by the Council, that the relevant costs rule is that found in cl 13(1) of Sch 5D of the National Law, but maintains that proper exercise of discretion under this provision supports a costs order in her favour for the following reasons:

(1) the Council's decision to remove the conditions on her registration, communicated on 13 March 2025, without any substantive change in the facts or circumstances, constitutes an unreasonable withdrawal of the conditions;

(2) this late withdrawal effectively rendered the appeal proceedings unnecessary and caused the practitioner to incur avoidable legal cost;

(3) cl 13(1) of Sch 5D of the National Law permits the Tribunal to award costs where it is fair and reasonable to do so; the timing and manner of the Council's decision clearly fall within this discretion, particularly as the decision to remove the conditions came only after the practitioner had expended significant time and resources preparing for a contested hearing;

(4) the practitioner has been significantly disadvantaged by the Council's conduct, which included a 94-day period during which she was unable to work as a registered nurse, suffered reputational damage, and faced severe financial strain. The practitioner submits that these are precisely the types of consequences that justify a costs order under the National Law;

(5) the Council's submissions fail to address the "critical point" that it provided no substantive justification for its change in position on 13 March 2025. The practitioner submits that this lack of transparency undermines the fairness of the entire process and supports her argument for costs;

(6) the Council's submissions overlook the fact that the practitioner's legal representative had repeatedly advised the Council that there were ongoing proceedings in the Fair Work Commission dealing with the same subject matter, which remain unresolved as at the date of the submissions. It was pointed out to the Council that these parallel proceedings rendered the matter sub judice, and that the practitioner's refusal to engage with certain aspects of the Council's demands was both reasonable and necessary in these circumstances. The practitioner's legal representative further made it clear in each of his communications with the Council that the practitioner would be seeking costs in respect of the Council's unjustified actions against her.

1. In addition, the practitioner submits that the Council's reliance on cases such as Joukhadar v Chief General Practitioner [2018] NSWCATAP 14 is misplaced, as those decisions involved parties who had failed to engage appropriately with their professional regulators, unlike the present matter where the Council itself acted unreasonably in maintaining and then abruptly revoking the conditions.
2. I do not understand this submission. First, the Council did not refer to Joukhadar v Chief General Practitioner and indeed, employing Jade Professional, I can find no case of that name. However, I note that the citation for Joukhadar v Chief General Practitioner given by the practitioner is the same as for Arambewela v Castle Projects Pty Ltd, namely [2018] NSWCATAP 14; it appears that something went wrong in the editing of the practitioner's submissions.
3. In conclusion, the practitioner maintains her position that the Council should pay her costs.

Submissions of the Council in reply on 20 May 2025

1. The Council filed further submissions to respond to the practitioner's "sub judice" submission, which had not been raised in her submissions in chief.
2. The Council notes that the essence of the practitioner's argument to the council made by reference to the term "sub judice" appears to be that the issues before the Council were the subject of the proceedings in the Fair Work Commission, and that to respond to the Council's request for information, and that therefore she had a "reasonable excuse" for the purpose of s 164G of the National Law.
3. The Council submits:

This argument was not, however, properly developed nor is it persuasive. As the Fair Work Commission decision (attached to these submissions) itself reveals, the Commission was concerned with the employer's motivation for the dismissal. It was not inquiring into the truth of the facts alleged in any complaint against the applicant. There was no identity of issues in the proceedings before the Council and the Fair Work Commission. The employer was not a party to the proceedings convened by the Council. The decision of the Council and evidence before it are not publicly available. Furthermore, the material the Council requested of the applicant encompassed materials such as her CV. It is difficult to see how her provision of at least some of the requested material could have prejudiced the applicant in the Fair Work Commission proceedings. Finally, as conceded by the applicant at [8], the proceedings were ongoing (at least as at the time of the applicant's submissions). That did not impede the applicant's recent cooperation with the Council. It is noted that on 16 May 2025, the Commission made its decision dismissing the appeal: [2025] FWCFB 102 (attached).

1. There are three issues to be determined. These are as follows, and I state my summary conclusion in italics:

(1) What is the relevant costs rule? The relevant costs rule is that found in cl 13(1) of Sch 5D of the National Law.

(2) What are the principles in relation to the application of the relevant costs rule? See [69]-[70] below.

(3) Should the Tribunal order the Council to pay the practitioner's costs? No.

1. Both parties agree that that the relevant costs rule is that found in cl 13(1) of Sch 5D of the National Law.
2. I agree.
3. As the Tribunal stated in Bolton v Health Care Complaints Commission (No 2) [2024] NSWCATOD 38, and many other decisions, this is a costs jurisdiction. This is well-established: Bolton at [20]).

What are the principles in relation to the application of the relevant costs rule?

1. As the Tribunal stated in Health Care Complaints Commission v Livermore [2021] NSWCATOD 115 at [19]:

The authorities are clear on this issue. In applying the provisions of cl 13, the general rule is that costs follow the event and that costs are intended to compensate the successful party, absent any disentitling conduct: [Health Care Complaints Commission v ] Philipiah [2013] NSWCA 342 at [42]; Lucire v Health Care Complaints Commission (No 2) [20111 NSWCA 182; Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [87]; Singh v Medical Council of NSW (No 2) [2015] NSWGATOD 28 at [45].

(emphasis added)

1. See too Health Care Complaints Commission v Philipiah [2013] NSWCA 342:

42 As a general rule, costs of proceedings before the Tribunal should follow the event and mere impecuniosity is not a justifiable reason for departing from that rule. 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.

(emphasis added)

Should the Tribunal order the Council to pay the practitioner's costs?

1. The Council relies on Lai Qin. In that decision, in a well-known and regularly cited passage, McHugh J stated at 624-625:

In most jurisdictions today, the power to order costs is a discretionary power. Ordinarily, the power is exercised after a hearing on the merits and as a general rule the successful party is entitled to his or her costs. Success in the action or on particular issues is the fact that usually controls the exercise of the discretion. A successful party is prima facie entitled to a costs order. When there has been no hearing on the merits, however, a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order.

In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties. To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action. ...

Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried. ... But such cases are likely to be rare.

If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings. This approach has been adopted in a large number of cases.

(footnotes omitted, emphasis added)

1. In Nichols v NFS Agribusiness Pty Ltd [2018] NSWCA 84 at [26], the Court of Appeal noted that the principles summarised by McHugh J were not new, and have been followed on many occasions since, including by the Court of Appeal. At [27] the Court referred to its own decision in Edwards Madigan Torzillo Briggs Pty Ltd v Gloria Stack [2003] NSWCA 302 where, after referring to the observations of McHugh J in Lai Qin, Davies AJA, with whom Mason P and Meagher JA agreed, observed (at [5]):

When proceedings are brought to an end without a determination after a trial, the judge may find it difficult, even impossible, to make an award of costs. If the judge does make an award, it will generally be because the judge is satisfied that one party has had a substantial victory and the other a substantial loss, or that there has been a marked difference in the reasonableness of the actions taken by the parties, so that one party should be rewarded for its reasonable actions and the other party should suffer a detriment in costs.

1. In addition, the Council also submits that in the health practitioner context, in Cooke v Medical Council of NSW [2020] NSWCATOD 15, the Tribunal determined it was appropriate to make no order as to costs. In that decision, the Tribunal (constituted by Principal Member Le Poer Trench ADCJ), stated

30 I conclude that this is a case which really does fall squarely wit hin the decision of Lai Qin. I do not find, on the evidence before the Tribunal, that either party has acted unreasonably in the circumstances. The respondent through its [Impaired Registrants Panel] arm has considered the matter and no doubt had access to evidence and advice which was not available when the respondent imposed the "further conditions". Further the [Impaired Registrants Panel] had the advantage of being able to hear from the applicant and/or his legal representative and therefore had the capacity to consider matters which may not have been available to those officers of the respondent who imposed the "further conditions". As the respondent pointed out however, the proceeding before the [Impaired Registrants Panel] was not a proceeding in the Tribunal.

31 I conclude therefore that the Tribunal should make no order as to costs, as regrettable as that may be to the applicant. Both parties have clearly incurred legal cost[s] in preparing for the hearing before the Tribunal ...

1. Therefore, the starting point in relation to practitioner's application for costs is that, there having been no hearing on the merits, that there should be no order as to costs. However, the practitioner submits that matters she sets out in her submissions warrant a costs order.
2. In summary, these are as follows.
3. First, the Council's withdrawal of the suspension was unreasonable. I disagree. I would have thought the Council was under a duty to so act if it changed its views about the need for conditions.
4. Secondly, the "Strength of the Appellant's Case Was Apparent", as the Council's decision to lift the suspension, implicitly acknowledged the weakness of its position and supports the view that the suspension was disproportionate from the outset. I reject that submission, it is a non-sequitur.
5. Thirdly, "Tribunal Time and Resources Were Wasted". Here the practitioner submits that the late reversal of the Council's position resulted in wasted Tribunal time and resources, particular in scheduling a hearing that became unnecessary, save for the question of costs. I accept that there were some expenses incurred, but as for wasted Tribunal time and resources, I will return to that issue later in these reasons.
6. Fourthly, the Council's submissions overlook the fact that the practitioner's legal representative had repeatedly advised the Council that there were ongoing proceedings in the Fair Work Commission dealing with the same subject matter. I reject that submission, those proceedings deal with quite different subject matter, namely the termination of the practitioner's employment by The Trustee for The Gunnebah Operating Trust.
7. In my view, the practitioner's submissions neither individually or even when considered cumulatively persuade me that the practitioner, who withdrew her appeal, admittedly because of circumstances outside of her control, is entitled to an order for costs.
8. Thus it becomes unnecessary to consider the Council's submission that the Tribunal was not confined to considering the party's conduct in the actual litigation itself, but can take into consideration matters which led up to and were the occasion of litigation, for which the authority is Bostock v Ramsey Urban District Council [1900] UKLawRpKQB 143; [1900] 2 QB 616 at 622, 625, 627. But I offer the following observations.
9. At first, I somewhat doubted that proposition of the Council, but I see that in Oshlack v Richmond River Council [1998] HCA 11, McHugh J stated (footnotes omitted):

The usual order as to costs

67. The expression the "usual order as to costs" embodies the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour. The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party. If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation.

...

69. The traditional exceptions to the usual order as to costs focus on the conduct of the successful party which disentitles it to the beneficial exercise of the discretion. In Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd, Devlin J formulated the relevant principle as follows:

No doubt, the ordinary rule is that, where a plaintiff has been successful, he ought not to be deprived of his costs, or, at any rate, made to pay the costs of the other side, unless he has been guilty of some sort of misconduct."

"Misconduct" in this context means misconduct relating to the litigation, or the circumstances leading up to the litigation. Thus, the court may properly depart from the usual order as to costs when the successful party by its lax conduct effectively invites the litigation; unnecessarily protracts the proceedings; succeeds on a point not argued before a lower court; prosecutes the matter solely for the purpose of increasing the costs recoverable; or obtains relief which the unsuccessful party had already offered in settlement of the dispute.

(emphasis added for the purposes of the following paragraph)

1. As noted, I removed the footnotes from that quotation. However, the footnote for the underlined passage, being a footnote of Devlin J, was Bostock.
2. However, Bostock was not relied on by the practitioner, who is the party seeking an order for costs. It was relied on by the Commission, which is resisting the order for costs.
3. However, it is not necessary for me to decide whether Bostock applies where a party is resisting a costs order.

1. Prior to the hearing, I had the Registry send a note to the parties, but directed to the practitioner, who had not indicated her position in relation to costs being determined on the papers and without a hearing.
2. For the assistance of the practitioner, I even included a reference to Health Care Complaints Commission v Caruana (No 2) [2024] NSWCATOD 36. In that decision, the Tribunal stated:

14 In the Primary Decision, the Tribunal stated that it proposed to deal with costs "on the papers" and without a hearing. I note that in Westerweller v The Owners Strata Plan No 18482 [2023] NSWCATAP 113 the Appeal Panel stated at [85] that:

it 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.

15 That principle equally applies in decisions in the Occupational Division.

1. The practitioner responded to my direction so late in the day, virtually when the Registry was closed, that it was impossible to vacate the hearing and give brief written reasons why I was doing so.
2. Suffice it to say that just because a party wants a hearing to take place in person, in circumstances where the party's legal practitioner is simply relying on their written submissions, and does not amplify those submissions in any significant way, it is apparent that the actual hearing was a waste of the legal representative time and, more importantly, a waste of limited public resources.

(1) The appellant's application is dismissed pursuant to s 55(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW).

(2) The appellant's application for costs is dismissed.

(3) There is no order as to costs.

(4) The parties are to bear their own costs of the external appeal.

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.