Last year Barry.Nilsson. Lawyers successfully defended a psychologist (the registrant) in disciplinary proceedings brought by the Psychology Board of Australia (the Board).[1]

Barry.Nilsson Lawyers then applied, on behalf of the registrant, for costs referable to those proceedings pursuant to section 255 of the then Health Practitioners (Professional Standards) Act 1999 (Qld) (Disciplinary Proceedings Act) (which has now been replaced by section 195 of the Health Practitioner Regulation National Law Act 2009 (Qld) (National Law)). A decision in relation to that application has recently been handed down, awarding costs in favour of the registrant.[2] Given the rarity of such an occurrence, a brief examination of the case and costs awards against disciplinary bodies is warranted.

Costs awards in QCAT

A range of occupations are governed by an authority, board, panel, committee or society. The role of these various governing bodies are generally described as including:-

  • Protection of the public;
  • To promote professional, safe and competent practice;
  • To promote high standards of service delivery
  • To maintain public confidence in the management of complaints; and
  • To take action against members for unsatisfactory professional conduct.

In Queensland, the Queensland Civil and Administrative Tribunal (QCAT) is the competent tribunal responsible for dealing with disciplinary proceedings involving a significant number of occupational groups.

The QCAT Act states that (except as otherwise provided) each party to a QCAT proceeding must bear their own costs.[3] It is only where the Tribunal considers the interest of justice requires it “that the Tribunal is empowered to make an order for costs against a party to the proceeding”.[4] Costs are often not awarded in favour of the successful party.

Insofar as a health practitioner is concerned, section 195 of the National Law provides that QCAT may make such orders as to costs as it “considers appropriate”. This grants QCAT a broad discretion, to be exercised judicially.[5]

Costs against disciplinary bodies

In making a decision on costs, a tribunal hearing disciplinary proceedings is not limited to making an order in favour of the relevant governing body.

Nevertheless, an important objective of disciplinary proceedings is to maintain standards, and therefore public confidence, in a particular profession.[6] In the case of a health practitioner, this is supported by section 3 of the National Law. Numerous cases confirm the reluctance of the relevant tribunal (or court) to award costs against the relevant governing body. It has even been suggested that it is contrary to the public interest that those responsible for governing the relevant profession should be deterred by fear of an adverse costs order, in circumstances where those costs would be bourne by the members of the particular occupation or profession.

In Baxendale-Walker v The Law Society [2007] EWCA Civ 233, the President of the Queen’s Bench Division, Lord Justice Laws recorded at 339:

“The exercise of a regulatory function places the Law Society in a wholly different position to that of a party to ordinary civil litigation. The normal approach to costs decisions in such litigation – dealing with it very broadly, that properly incurred costs should follow the ‘event’ and be paid by the unsuccessful party – would appear to have no direct application to disciplinary proceedings against a solicitor.

…one crucial feature which should inform the Tribunal’s costs decision is that the proceedings were brought by the Law Society in exercise of its regulatory responsibility, in the public interest and the maintenance of proper professional standards.” 

As against the above, it has also been noted that those who are charged with and subsequently acquitted of a disciplinary offence, may hold a legitimate expectation that they should receive some indemnification as to costs which, in many cases, can be considerable. [7]

The Tubaro proceedings

The matter had a long and complex history commencing in August 2009. The substantive proceedings related to a complaint made to the Board about the conduct of the registrant in her capacity as a family law report writer. Following a hearing on 13 May 2014, QCAT handed down its decision on 26 June 2014 that neither of the bases for a finding for unsatisfactory professional conduct as alleged by the Board had been established. The referral to QCAT was accordingly dismissed.

The referral dealt with evidence that the registrant gave in the Family Court on 21 May 2010. The registrant had been engaged to prepare a family report in proceedings involving a child custody dispute. The Board alleged that the registrant failed to be full and frank in her answers to the Family Court to questions put to her during cross examination about an investigation being conducted by the Board. The Board also alleged that the evidence given by the registrant in relation to the disciplinary matter (the disciplinary matter) was an attempt by the registrant to minimise the seriousness of the allegations which had been made against her.

On 9 February 2012, the then Psychology Board of Queensland reversed its decision to commence disciplinary action against the registrant in relation to the disciplinary matter.

In support of the application for costs, we submitted that the fact that proceedings were brought pursuant to a legislative duty should not, of itself, prevent an award of costs in favour of the successful registrant. We submitted that, similarly to ordinary court proceedings where costs follow the event, if in disciplinary proceedings a complaint against a registrant has failed, QCAT should make an order for costs in a registrant’s favour. This was particularly so in this case given the long and complex history, and the manner in which the matter had been conducted by the Board.

In support of the application we noted, amongst other things, that the registrant should be entitled to a costs award in circumstances where:-

  • Initially upon receiving the complaint and without notice to the registrant, the Board referred the complaint to the Australian Federal Police (AFP);
  • Upon the AFP advising, almost 12 months after the referral, that it had no interest in the complaint, the Board advised the registrant of the complaint and its decision to conduct an investigation;
  • On 21 May 2012, the Board advised the registrant that it had decided to commence disciplinary proceedings;
  • The registrant elected for her matter to be referred to QCAT rather than to a disciplinary committee of the Board;
  • At the time of making the election, the registrant had been informed that the Board was of the belief that “she failed to provide a full and frank explanation to the court”;
  • The Board did not provide particulars of the disciplinary action until 29 January 2013;
  • The registrant was within her rights to refer the matter to QCAT, especially considering the seriousness of the Board’s initial position that the registrant had committed perjury;
  • The registrant’s professional reputation was in jeopardy; and
  • The Board had taken two and half years upon receipt of the complaint for the matter to be referred to QCAT.

In a decision of 28 April 2015, His Honour Justice Horneman-Wren found that it was appropriate that the registrant should have the majority of her costs of and incidental to the QCAT proceeding. His Honour found that the registrant was entitled to have the matter referred to the QCAT. Her decision to do so had been vindicated. The reasons in the substantive decision demonstrated that the registrant’s evidence could not be characterised in the way in which the Board sought to do. The registrant needed to pursue the matter to a hearing before the Tribunal in order to establish that and, in His Honour’s view, ought to be compensated for the cost of doing so.[8]

Interestingly, His Honour found that the factors in section 102 of the QCAT Act are not directly relevant to the exercise of the Tribunal’s discretion under section 255 of the Disciplinary Proceedings Act (now section 195 of the National Law).[9]  

The order ultimately made was for the Board to pay 85% of the registrant’s costs of and incidental to the proceedings. The reason for the 15% discount was to take into consideration costs associated with an adjourned hearing.

This decision is consistent with a recent decision of the New Zealand Court of Appeal in which a nurse who was suspended for an 18 month period, the amount of time which the nurse had indicated he was prepared to accept, sought his costs.[10] This decision was handed down after the application for costs in Tubaro had been filed but before the judgment was delivered.

In Roberts, the High Court had held that costs orders could only be made in favour of the nurse’s disciplinarian. The important public function of the maintenance of standards in the provision of healthcare caused the High Court to carve out quite a prescriptive costs regime in the High Court Rules.  Before the High Court the nurse failed in his claim for costs although he had obtained precisely the penalty that he had sought.

The nurse appealed on costs. Relevantly, the Court of Appeal noted that:-

“Given that the fact that conduct committees are performing a public function will be a factor in every appeal, it might be thought that taking this into account will for all intents and purposes produce exactly the same results as that proposed by the judge’s compelling reason threshold. Taking the public function into account will effectively mean that something else in addition to success may sometimes be required before costs can be awarded to a successful applicant. Ultimately, however, it is a question of degree or emphasis.”

The Court of Appeal allowed the nurse’s appeal.

Implications

Notwithstanding the important regulatory public function of a disciplinary body, in Queensland a disciplinary body does not have an immunity to a costs order against it. Just as a governing body should not be deterred from pursuing a disciplinary matter for fear of an adverse costs order, neither should a registrant be deterred from defending a disciplinary matter for fear that even if successful, this may not result in an award of costs

Gillian Sheppard