KJ Young has won a costs application for the Dental Board of Australia (the Board) in respect of an application by a dentist for specialist accreditation in Australia as an orthodontist. Dr Gustavo Vivaldi practised as an orthodontist in Brazil for over a decade before migrating to Australia in 2013. In 2003, he completed a Master’s degree in Orthodontics at the Associação Maringaense de Odontologia, a tertiary institution in Brazil. Since July 2015, he has held registration as a dental practitioner in Australia. In July 2016, Dr Vivaldi applied to the Board for specialist registration in the field of Orthodontics. The Board refused to grant that application. In September 2017, Dr Vivaldi exercised his right to appeal that decision to the NSW Civil and Administrative Tribunal (NCAT).
The appeal was listed for hearing before NCAT on 11 and 12 July 2018. On 6 July 2018, Dr Vivaldi informed the Tribunal of his decision to withdraw the appeal and proposed that each party should bear their own costs. The Board refused and asserted that Dr Vivaldi is liable for its costs of the appeal. Being unable to reach agreement, the parties requested that the Tribunal determine the issue of costs. The Tribunal decided to order that Dr Vivaldi pay 60% of the Board’s costs to 28 June 2018 and all of its costs thereafter.
Litigants or potential applicants need to be mindful that in NSW, when they apply for administrative review of a registration decision made by the regulator or national boards under the Health Practitioner Regulation National Law (NSW) (the National Law), the usual costs rules apply and not the ‘special circumstances’ costs rule under clause 60 of the Civil and Administrative Tribunal Act 2013 (NSW). In exercising the power conferred by the National Law to award costs, the general rule is that costs follow the event: clause 13 of Schedule 5D of the National Law; Health Care Complaints Commission v Philipiah  NSWCA 342 at ; Qasim v Health Care Complaints Commission  NSWCA 282 at ; Health Care Complaints Commission v Do  NSWCA 307 at .
Despite effectively ‘surrendering' the entirety of his case in the lead up to the hearing, Dr Vivaldi refused to agree to pay any costs which had been incurred by the Board in preparing for the hearing of his application. An offer of 60% of its costs was made by the Board in the lead up to the final hearing which was rejected outright by Dr Vivaldi on the basis that his case involved matters of public interest such that the costs discretion should be exercised in his favour. The Tribunal found that Dr Vivaldi should have accepted the offer that had been made by the Board and ordered him to pay the Board’s costs as agreed or assessed. It appears being the model litigant and making early and appropriate offers sometimes pays off for government agencies.
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