Australia, Aug. 4 -- New South Wales Land and Environment Court issued text of the following judgement on July 3:

1. A Stage 1 hearing of this matter was conducted on 26, 27 and 28 April 2023. Reasons for decision were published on 22 December 2023: Health Care Complaints Commission v Vorillas [2023] NSWCATOD 190 (Primary Decision).

2. The Tribunal found Complaints One, Three, Four and Five of the five complaints alleged by the Commission to be established.

3. A Stage 2 hearing was then conducted on 6 June 2024. Reasons for decision were published on 16 August 2024: Health Care Complaints Commission v Vorillas (No 2) [2024] NSWCATOD 126 (Stage 2 Decision).

4. The Tribunal decided to suspend the registration of the respondent for a period of 6 months and to order him to satisfactorily complete within 6 months of the publication of the Stage 2 Decision education approved by the Chiropractic Council of NSW.

5. These reasons deal with the costs of the proceedings, and assume a knowledge of the Primary Decision and the Stage 2 Decision.

6. For the following reasons, we have decided to order the respondent to pay 90% of the Commission's costs.

Submissions

7. As the Tribunal noted in the Stage 2 Decision, the Commission sought its costs on the basis it had been successful in the Stage 1 proceedings and as this was a costs jurisdiction, absent some disentitling conduct, the Commission was entitled to its costs in the usual course of events.

8. The practitioner submitted that the Tribunal ought to exercise its discretion to displace the presumption that the successful applicant was entitled to receive their costs.

9. The practitioner sought an order that the practitioner pay only 50% of the Commission's costs, based on the contention that discrete and substantial elements of the conduct complained of were not established, which took up a substantial part of the hearing of the matter, and in those circumstances, it was appropriate to reduce costs to be recovered by the Commission: Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48]-[52].

10. In response, the Commission submitted that such a presumption will generally only be displaced where there has been "disentitling conduct" by that party, and that it is for the losing party to establish the basis for any departure from the rule: Patrech v Psychology Board of Australia (No 2) [2023] NSWCATOD 9 at [11]; Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [40]; Health Care Complaints Commission v CSM [2016] NSWCATOD 125 at [98] and Health Care Complaints Commission v Brush (No. 2) [2015] NSWCATOD 154 at [9];

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/197c84378f474da650c39748)

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