Eastwood v Psychology Board of Australia (Appeal) - [2016] ACAT 110

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

EASTWOOD V PSYCHOLOGY BOARD OF AUSTRALIA (Appeal) [2016] ACAT 110

AA 35/2016 (OR 14/2015)
Catchwords: APPEAL – occupational discipline – health practitioner – psychologist – statutory interpretation: meaning of specified period - order for costs on appeal: jurisdiction

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 48, 79
Health Practitioner Regulation National Law (ACT) ss 178, 201, 203

Subordinate
Legislation: ACT Civil and Administrative Tribunal Rules 2009 r 21

Cases cited:B & T Constructions (ACT) Pty Ltd v Construction Occupations Registrar and Anor [2013] ACTSC 219
Bond Corp Holdings Ltd v Sulan (1990) 3 WAR 49
Chakravarty & Commissioner for ACT Revenue [2013] ACAT 11
Eastman v Commissioner for Housing in the Australian Capital Territory [2008] ACTSC 1
Eastwood v Psychology Board of Australia [2016] ACAT 52
HBFHealth Funds Inc. v Minister for Health and Ageing [2006] FCAFC 34; (2006) 149 FCR 291
ISPT Pty Ltd v Commissioner for ACT Revenue [2013] ACAT 43
John Flynn Community Group Inc. and Flynn Primary School Parents and Citizens Association Inc v ACT Heritage Council [2012] ACTSC 50
HCCC v Gower [2011] NSWNMT 17
HCCC v Rixon [2016] NSWCATOD 24
Hocking v Medical Board of Australia and Anor [2014] ACTSC 48
Kozanoglu v Pharmacy Board of Australia [2012] VSCA 295
Pharmacy Board of Australia v Lagos [2014] SAHPT 3
Re Karounos: Ex parte Official Trustee in Bankruptcy (1989) 25 FCR 177

Text/Papers: Macquarie Dictionary, 5^th edition

Tribunal: Presidential Member G C McCarthy

Date of Orders:  30 September 2016
Date of Reasons for Decision:         30 September 2016
AUSTRALIAN CAPITAL TERRITORY            )          AA 1/2016
CIVIL & ADMINISTRATIVE TRIBUNAL                   )     (OR 14/2016)
BETWEEN:
NOEL EASTWOOD
Appellant

AND:
PSYCHOLOGY BOARD OF AUSTRALIA
Respondent

TRIBUNAL: Presidential Member G C McCarthy

DATE:30 September 2016
ORDERS

The Tribunal Orders that:

The tribunal’s order 1(a) made on 25 May 2016 is amended by substituting the words ‘from 1 June 2016’ with the words ‘from 17 October 2016’.
Subject to order 1, the appeal is dismissed and the tribunal’s orders made on 25 May 2016 are confirmed.
The matter is to be relisted for further hearing on a date to be fixed on the question of costs.
………………………………..
Presidential Member G C McCarthy

REASONS FOR DECISION

The appellant, Noel Eastwood, appeals from a decision of the tribunal given on 25 May 2016 pursuant to which the tribunal varied conditions imposed on the appellant’s registration as a psychologist with the respondent, the Psychology Board of Australia (the Board).[1]
[1] Eastwood v Psychology Board of Australia [2016] ACAT 52
In these reasons, the word ‘tribunal’ is used when referring to the tribunal that conducted the original hearing. The words ‘appeal tribunal’ are used when referring to this appeal tribunal. The word ‘Tribunal’ is used when referring to the Tribunal in other cases.
Ms J Keys of counsel appeared for the appellant. Dr D Jarvis of counsel appeared for the respondent.
The factual background can be shortly stated.
On 9 September 2013, the appellant completed and signed a document entitled ‘Medical Report Disability Support Pension’ (the Medical Report) which was lodged with Centrelink with his client’s application for a disability support pension. Comments written by the appellant in the Medical Report became the subject of complaint to the Board by his client’s former wife.
The Board determined that the appellant’s comments in the report breached the Australia Psychological Society’s Code of Ethics and its Guidelines on Recordkeeping by using judgemental and emotionally laden language and not necessarily statements of fact. The Board determined that the report was not limited to the appellant’s opinion in relation to his client’s psychological condition but went further to make judgements in relation to his client’s marriage breakdown. In addition to a caution, the Board imposed conditions on the appellant’s registration as a psychologist under section 178(2)(a) of the Health Practitioner Regulation National Law (ACT) (the National Law).
Under section 199(1)(e) of the National Law, the appellant appealed to the tribunal against the decision to impose the conditions. After hearing the appeal, the tribunal decided that a period of six months’ supervision from a psychologist approved by the Board, rather than 12 months as previously decided, would be “sufficient to achieve the ends that the Board seeks”[2] and otherwise materially confirmed the conditions previously imposed by the Board.
[2] Eastwood v Psychology Board of Australia at [35]
By application for appeal dated 20 June 2016, the appellant appealed to the appeal tribunal from the tribunal’s decision on six grounds:
1.   In making findings about the appellant’s concessions at paragraphs 22 and 23 of its reasons for decision, the tribunal failed to have regard to the context being the respondent’s amendment of paragraph 45(d) of its statement of facts and contentions filed on 31 August 2015 at the commencement of the hearing on 10 September 2015.
2.   There is no evidence to support the tribunal’s findings at paragraphs 31 and 32 of its reasons for decision that statements in the Medical Report:
(a)ignored “the intervention of the Family Court into the marital affairs of the parties”;
(b)used “a form of terminology (Parental Alienation Syndrome) as though it were a recognised and commonly used psychiatric classification” and promoted “a diagnosis not generally accepted”.
3.   There is no evidence to support the tribunal’s findings at paragraphs 34 of its reasons for decision specifically that “it is clear that the appellant by the time this report was prepared, had become the advocate for his client’s cause”; “there was little sign of an objective professional opinion”; and “the tenor of the language used appeared to be intended to support the client’s application” [to CSA for reduction in child support payments].
4.   In making the findings identified in grounds 2 and 3, the tribunal denied the appellant natural justice because such contentions were not identified by the respondent in its statement of facts and contentions.
5. The tribunal failed to give proper effect to the tribunal’s orders 1 and 2 (excluding the second sentence of order 1) made on 11 August 2015 and the Privacy Act in connection with the Medical Report and its contents.
6.   The sanction imposed by the tribunal at [36] of its reasons is uncertain and contravenes section 178(2)(c)ii) of the National Law.
The appellant’s right of appeal arises under section 79(3) of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act), which permits a party to appeal on a question of fact or law. Section 79(3) requires the appellant to establish error of fact or law by the initial tribunal,[3] rather than persuading the appeal tribunal to reach different conclusions on the merits, but I accept that each of the grounds of appeal alleges error. I deal with each ground turn.

Ground 1

[3] B & T Constructions (ACT) Pty Ltd v Construction Occupations Registrar and Anor [2013] ACTSC 219; Chakravarty & Commissioner for ACT Revenue [2013] ACAT 11; ISPT Pty Ltd v Commissioner for ACT Revenue [2013] ACAT 43

To understand the first ground, it is necessary to state paragraphs 22 and 23 of the tribunal’s reasons:
22. During submissions, counsel for the applicant did make some concessions. She said that the applicant did accept that in relation to the material in Section H he should have indicated that he was reporting what he had been told by his client, and that rather than repeating the client’s words, the material in this section should have been his assessment of the underlying factors. The reference to parental alienation syndrome was a term used by his client in discussions with him, and was most likely coined by the client himself. It has no accepted validity or common usage in psychiatric terminology and is not a term that a trained psychiatrist or psychologist would be likely to use.
23. However, there is no hint of those concessions in the applicant’s reply to the respondent’s statement of facts and contentions which was filed on 7 September 2015, three days before the hearing.
The appellant accepts that he made the concessions set out in paragraph 22.[4] The complaint is the tribunal’s alleged failure to have regard to the context in which the concessions were made.
[4] see transcript of initial tribunal hearing 10 September 2015, page 41, lines 23-29
In her outline of submissions, Ms Keys stated that there was no hint of the concessions three days prior to the hearing because the concessions were made in the context of four matters, three of which (at least) including the Board’s amendment to paragraph 45(d) of its statement of facts and contentions, occurred at the hearing.
In my view, this observation about context has no bearing on the accuracy of the tribunal’s statement(s), or on the fact of when the concessions were made. Nor did the context have any relevance because the case did not materially change as a result of the matters that occurred at the hearing. From the beginning, the central issue giving rise to the disciplinary action was the appellant’s failure to write his Medical Report in a factual, non-judgmental manner and using neutral language.
On any fair reading, the appellant’s handwritten comments in parts H and K of the Medical Report, for example the words “this is the worst nasty divorce I have encountered - he is shattered by it”, would be understood as an expression of the appellant’s opinions.
The appellant could have, at any time in response to the Board’s original disciplinary action or in his appeal from that action to the tribunal (noting that on ‘appeal’ the tribunal was required to take into account the material that was before Board when it made its decision and any additional evidence that bears directly upon the position as it was when the original decision was made)[5] explained that the opinions in the Medical Report were not his, but the opinions of his client as reported to him. From there, he could also have conceded that the comments in the Medical Report should have been written in a manner to make that clear. The appellant did neither. All the tribunal was doing in paragraphs 22 and 23 of its reasons was noting that that concession was not made until three days prior to the hearing.
[5] Hocking v Medical Board of Australia and Anor [2014] ACTSC 48 at [121] – [127], citing Kozanoglu v Pharmacy Board of Australia [2012] VSCA 295
I cannot see any error on the part of the tribunal by it reporting the undisputed fact of the concessions that were made and when they were made. Even if the tribunal did not appreciate the context of the concessions, they remain admitted concessions that were made and acknowledged accordingly.
For these reasons, the first ground of appeal is not successful.

Ground 2

To understand the second ground, it is necessary to state paragraphs 31 and 32 of the tribunal’s reasons:
31. The statement under part H attributes fault and deliberately dishonourable behaviour factually to the complainant, going beyond opinion or reasonable inference. It uses emotive, extreme and exaggerated language. It does not purport to give an objective assessment or opinion of the situation. It ignores the intervention of the Family Court into the marital affairs of the parties. It does not distinguish between fact, hearsay, inference or opinion. And it uses a form of terminology (Parental Alienation Syndrome) as though it were a recognised and commonly used psychiatric classification.
32. The statement under part K also attributes fault and dishonourable behaviour factually to the complainant. It does not attempt to distinguish between fact hearsay, inference or opinion. It promotes a diagnosis not generally accepted.
Ms Keys submitted there is ‘no evidence’ to support the tribunal’s conclusion that the appellant ignored the intervention of the Family Court. She referred by way of example to references to the ‘divorce’ which, she says, make clear that the appellant relied on and was aware of the Court’s intervention rather than ignored it.
With respect, the contention misunderstands the tribunal’s statements in paragraph 31. In issue was the appellant’s statements in the Medical Report, for example that his client’s wife “destroyed him and took everything he had including turning his children against him.” The tribunal was observing, in paragraph 31 of its reasons, that the appellant’s language was “emotive, extreme and exaggerated” because it ignored the fact that property and child custody arrangements between his client and his client’s former wife were not determined by the wife. Rather, they were the subject of independent judicial determination by the Court resulting in Family Court orders. The tribunal’s conclusion that the appellant had ignored this important fact was properly open to it, as an opinion or conclusion drawn from the language that the appellant used.
Ms Keys also submitted that the appellant’s statement in the Medical Report did not display a failure to ignore the Family Court’s orders in 2012 because these remained true statements of the appellant’s client’s perception about what occurred and the cause of his [the client’s] depression. In my view, the submission again misunderstands the appellant’s failing. The statements may well be the views of the appellant’s client, but on any fair reading the words in the Medical Report would be understood as the views of the appellant, not his client.
Regarding the contention that there was ‘no evidence’ that the appellant used the term, Parental Alienation Syndrome, as though it were a recognised commonly used psychiatric classification, and promoted a diagnosis not generally accepted, the appellant submits the term was not used as a psychiatric classification but simply ‘another name’ for his client’s children being “turned against him methodically” and that there is no evidence that the appellant was even aware that the term was not a recognised condition.
Again, in my view, the contention misunderstands the tribunal’s statements in paragraphs 31 and 32. The tribunal was merely making the point that any lay person reading the appellant’s statements in section K of the Medical Report would reasonably conclude that the appellant used the words ‘Parental Alienation Syndrome’ as a recognised term or diagnosis used in the profession of psychology. The tribunal’s criticism was of the appellant’s failure to make clear that this was not his term or a term used in psychology, but rather a term used by his client, as dealt with earlier in paragraph 22 of the tribunal’s reasons. There is no error of fact or law.
For these reasons, the second ground of appeal is unsuccessful.

Ground 3

Ms Keys submitted that for the tribunal to describe the appellant as “the advocate for his client’s cause” implied that the Medical Report was prepared for some purpose other than his client’s application for a pension, and that there was no evidence that the appellant was an advocate for any ‘other’ cause.
In my view, that implication cannot be properly drawn. No one has suggested any other purpose for the Medical Report or cause for which it was written, nor is any apparent. Also, the submission misses the point. The tribunal was commenting on the inappropriateness of the appellant being an advocate for his client at all, even in support of his client’s ‘cause’ of obtaining a pension. The essential criticism was of the appellant’s failure to provide “an objective professional opinion” regardless of whether that opinion supported or not his client’s application for a pension. It is somewhat concerning that the submission displays a continuing lack of appreciation of that professional obligation.
Ms Keys also submitted that the tribunal’s statement that there is “little sign of an objective professional opinion” is inaccurate because there is no criticism of the appellant’s diagnosis and treatment of his client. The appellant’s diagnosis and treatment of his client is beside the point. The tribunal’s words ‘little sign’ are a reference to the content of the Medical Report, not anything else.
Ms Keys’ submission that there was ‘no evidence’ to support the tribunal’s conclusions in paragraph 34 of its reasons about the appellant’s conduct is contradicted by the evidence reported in the reasons. First, Dr Boyle gave evidence, as quoted in paragraph 33 of the tribunal’s reasons, that the appellant’s language in the Medical Report was “not in keeping with a reasonable professional standard.” Also, the tribunal was drawing its conclusions from the primary evidence, namely the appellant’s words written in the Medical Report.
For these reasons, the third ground of appeal is unsuccessful.

Ground 4

The fourth ground of appeal flowed from the second and third grounds. In her written submissions, Ms Keys submitted that if there was no evidence to support the facts or conclusions in the tribunal’s reasons, as quoted in grounds 2 and 3, then there was no opportunity for the appellant to respond to those matters.
Where I have decided that grounds 2 and 3 are unsuccessful, ground 4 (as put) falls away. However, the proposition set out in ground 4 would not follow even if there was ‘no evidence’ to support the facts or conclusions in issue. Having an opportunity to respond to matters entails an awareness of the case to meet and the issues to which the appellant would need to respond. Lack of evidence goes to the question whether those matters are proved.
In her written submissions in reply, Ms Keys submitted that the Board had misunderstood ground 4, and that ground 4 alleged a denial of natural justice because the tribunal’s findings, as identified in grounds 2 and 3, were not based on the case that the appellant was required to meet as alleged in the Board’s statement of facts and contentions.
In my view, with respect, ground 4 misunderstands general principles concerning procedural fairness. Whether the appellant had an opportunity to address or respond to the tribunal’s findings or conclusions now challenged is a practical issue to be decided by reference to the whole of the circumstances. Knowledge of the issues and an opportunity to respond to them can come from different sources, including documents filed by another party, questions asked by the tribunal, and statements of evidence filed in advance of the hearing.
In this case, I am satisfied that the appellant was aware of the substance underpinning each of the facts or conclusions that were later stated in the tribunal’s reasons.
The appellant was on notice of the contention that his Medical Report contravened the Code and the Guidelines, because he had not considered his client’s former wife’s rights as declared by the Family Court, because it was stated in paragraphs 21 and 44 (c) of the Board’s statement of facts and contentions.
The appellant was on notice of the contention that he had used the term ‘Parental Alienation Syndrome’ as though it were a recognised and commonly used psychiatric classification because the tribunal discussed the appellant’s use of the term with Ms Keys during the hearing, in particular that the term has no legitimacy within standard psychiatric terminology.[6] Anyone reading the appellant’s Medical Report would have understood it to be ‘his’ report. Where the appellant is a psychologist, a reader would therefore reasonably conclude that the term, as phrased, had a professional meaning. The appellant conceded that he should have written his Medical Report in a manner that made clear that this was not the case and that the term was nothing more than a term used by his client.
[6] Transcript of Proceedings 10 September 2015, page 44 lines 6 - 44
The appellant was on notice of the contention that he had become the advocate for his client’s cause and had used language that appeared to be intended to support his client’s application because the whole thrust of the discipline action was his failure to provide in his Medical Report an objective professional opinion. All the tribunal was doing was expressing its conclusions about the appellant’s conduct.

For these reasons, the fourth ground of appeal is unsuccessful.

Ground 5

On 11 August 2015, the tribunal ordered, per order 1, that “the publication of names and identifying details of the applicant’s client, family members and the notifier are prohibited.” Under order 2, it ordered that “there is to be no public access to documents filed with the tribunal by either party.”
The appellant alleged that the tribunal in its reasons failed to give effect to these orders. Even if that were so, it would not amount to an error of fact or law in its orders or its reasons for decision. At best, it is a very serious allegation that the tribunal acted contrary to early procedural orders and contrary to the ‘Privacy Act’. These allegations were without foundation, and should never have been made. The ground of appeal did not even indicate whether the appellant intended the Privacy Act (Cth) or the Information Privacy Act 2014 (ACT) or why (in my view incorrectly) the tribunal is subject to either when publishing reasons for its decision.
Regarding the alleged breach of order 1, Ms Keys submitted that the extracts from the appellant’s Medical Report quoted in the decision “are clearly identifiable as ... pertaining to the appellant’s client”, especially by persons and agencies who received the Medical Report, his client’s ex-wife and persons to whom she provided a copy of the Medical Report.
The submission is misconceived. Order 1 did no more than prohibit publication of the names and identifying details of the stated persons. The reasons for decision did not breach order 1: no one who did not already know about the case would be able to surmise from reading the tribunal’s reasons for decision that they related to the appellant’s client or his client’s ex-wife.
It is irrelevant that persons who already had confidential information about these people and their personal circumstances would be able to recognise that the decision relates to them. That situation invariably arises where someone has prior, independent and private knowledge about a case.
Regarding the ground of appeal that appears to assert that the Tribunal or any of its staff gave public access to the documents filed by either party, Ms Keys did not refer to any evidence in support of this serious allegation: it was an improper claim that should not have been made absent any evidence to support it.
Regarding the claim that the tribunal breached the ‘Privacy Act’, Ms Keys submitted that there was no obligation on the appellant to consult with his client’s ex-wife when reporting upon his client’s condition and that his client’s ex-wife was not the intended recipient of the appellant’s Medical Report.
It is difficult to understand how those uncontroversial facts could establish that the tribunal breached the ‘Privacy Act’, whichever Act was intended. The link seemed to be that because the tribunal quoted extracts from the appellant’s Medical Report concerning his client’s health, so this was a breach of his client’s privacy. I reject the submission. First, Ms Keys did not refer to any provision of any Act that was applicable and/or breached, or explain how it was applicable and breached, nor could I find any such provision. Second, nothing in the quoted passages identifies the appellant’s client. Third, how the ex-wife obtained a copy of the Medical Report is irrelevant when determining the appropriateness of its content.
For these reasons, the fifth ground of appeal is unsuccessful.

Ground 6

Section 178(2)(c)(ii) of the National Law provides:
The National Board may decide to take one or more of the following actions (relevant action) in relation to the registered health practitioner or student-
(c) impose conditions on the practitioners or students registration, including, for example, in relation to a practitioner –
(i)...
(ii condition requiring the practitioner to undertake a specified period of supervised practice;... (emphasis added)
Ms Keys submitted that to impose a condition that the appellant engage in monthly supervision of his practice for a period of “not less than six (6) months” from 1 June 2016 was not a permissible order because the supervision was not for ‘a specified period’ under section 178(2)(c)(ii). She contended that the section did not permit the tribunal to impose “a minimum period of supervision and the possibility of extending the period of supervision at the Board’s discretion.”
Ms Keys put the same argument to the tribunal, in response to the Board’s original decision to impose a period of supervision of ‘not less than’ 12 months.[7] Dr Jarvis responded to that argument before the tribunal, submitting that a specified period would be appropriate, but subject to compliance. Otherwise, he submitted, the appellant would be able to “turn up to the sessions and treat them in a way that suggested he wasn’t being serious and at the end of 12 months, the matter would be disposed of.”[8]
[7] Transcript of Proceedings 10 September 2015, page 43, lines 14 - 25
[8] Transcript of Proceedings 10 September 2015, page 54, lines 18 - 27
I accept that the words ‘specified period’ required detail, clarity and precision.[9] In Bond Corp Holdings Ltd v Sulan[10], the Supreme Court of Western Australia, per Malcolm CJ said that the word ‘specify’ means “make unambiguously clear.”
[9] See Gantry v Parker & Parsley Petroleum Australia Pty Ltd (1994) 51 FCR 554 at 569
[10] (1990) 3 WAR 49 at 64
In Re Karounos: Ex parte Official Trustee in Bankruptcy,[11] the Federal Court of Australia, per Sheppard J said:
18. The initial question is whether, for the purposes of subsec. 149(8), the order in question specifies a period, being a period exceeding five years commencing on the date of the bankruptcy. I was referred to dictionary meanings of the words "specify" and "period". The Macquarie Dictionary defines the word "specify" as meaning to mention or name specifically or definitely or to give a specific character to. It may also mean to name or state as a condition and to make a specific mention or statement. "Specific" means, inter alia, specified, precise or particular or peculiar or proper to something as qualities, characteristics, effects. One of the meanings of "period" is any specified division or portion of time. That is the meaning which I think the word bears here, particularly in the light of the various periods of time which are mentioned in the section.
19. In United Repairing Co. Limited v. Glover (1945) NZLR 160 the New Zealand Court of Appeal was concerned with a number of questions, one of which was whether an order made under s. 3(5) of the Factories Amendment Act 1936 (N.Z.) was expressed to be for "a specified period". In the course of his judgment Myers C.J. said (p 164) that the expression "specified period" must mean that the period must be fixed, definite and certain. Likewise Kennedy J. said (p 170) that "specified" meant definitely or specifically mentioned; determined; fixed; or settled.
[11] (1989) 25 FCR 177 at [18] – [19]
Referring to the tribunal’s order 1(a), the question therefore is whether the tribunal specified a determined, fixed or settled period of supervision.
When the orders and the reasons for decision are read as a whole, it becomes clear that the words ‘not less than’ did not impose or permit an unconditional and indefinite period of supervision with a minimum of six months. Rather, per order 1(a), there is a specified period of six months of supervision and, per order 1(e), a capacity for the respondent to impose separate and further supervision ‘if the respondent is not satisfied that the report [provided under order 1(d)] demonstrates that the [appellant] has met the objectives of the supervision’.
That reading of the orders is reinforced by the tribunal’s reasons at [35], which included:
The Tribunal is of the view that a period of six months will be sufficient to achieve the ends that the Board seeks. However, there should be a review of the efficacy of the period at its end with the possibility of continuation if found to be necessary. (emphasis added).
The words ‘not less than’ in order 1(a) are merely to accommodate or recognise the possibility of a further and separate period of supervision under order 1(e).
For these reasons, in my view it was open for the tribunal to phrase order 1(a) in the way it did: the period of supervision is specified at six months. Any further supervision is separate and conditional upon order 1(e) becoming operative.
For these reasons, the sixth ground of appeal is unsuccessful.

Costs

The Board seeks an order that the appellant pay its costs pursuant to section 201 of the National Law which provides:
The responsible tribunal may make any order about costs it considers appropriate for the proceedings.
‘Responsible tribunal’ is defined in section 5 to the National Law in a manner that includes the tribunal.
In the ordinary course, the parties to an application to the Tribunal must bear their own costs subject to limited amounts or exceptions[12] but that does not apply in relation to an application brought under the National Law. Section 201 and section 203 form part of Division 13 of the National Law. Section 203 provides:
This Division applies despite any provision to the contrary of the Act that establishes the responsible tribunal but does not otherwise limit that Act.
[12] ACT Civil and Administrative Tribunal Act 2008 s 48
The Board seeks costs on the grounds that the appeal grounds were so manifestly misconceived as to have no reasonable prospect of success; that the respondent is not a government-funded body, and meets its expenses from health practitioners’ registration fees; that on 5 August 2016 the appellant was invited to withdraw his appeal yet did not do so; and that costs were not sought before the tribunal at first instance.
Regarding the first ground, the submission was based on the fact that the appellant conceded in the original tribunal proceeding that he erred by not making it clear in his Medical Report that the expressed opinions were the opinions of his client, not him. Where that error underpinned the orders made, and the appellant acknowledged the error before the tribunal, it was submitted, any appeal against the orders was without prospect.
I accept that submission. Referring to the grounds of appeal, it is not enough simply to show error: an error of law, if established, must be of a kind that would entitle the appellant to the relief he seeks.[13] At the appeal hearing, Ms Keys stated that her client’s failure to distinguish his opinions from his client’s opinions was ‘the gravamen of everything.’
[13] Eastman v Commissioner for Housing in the Australian Capital Territory [2008] ACTSC 1 at [12]; HBFHealth Funds Inc. v Minister for Health and Ageing [2006] FCAFC 34; (2006) 149 FCR 291 at [5], [6] and [33] cited with approval in John Flynn Community Group Inc. and Flynn Primary School Parents and Citizens Association Inc v ACT Heritage Council [2012] ACTSC 50 at [16]
Regarding the second ground, counsel for the Board relied on Pharmacy Board of Australia v Lagos[14] in which the Health Practitioners Tribunal of South Australia noted that:
the costs of regulating the profession come from registration fees and it is unfair for the profession to bear all of the costs of disciplining the respondent and [because] the profession needs to be aware of the consequences of professional misconduct of this type an order is made that the respondent is to contribute towards the complainant’s costs.
[14] [2014] SAHPT 3 at [58]
Ms Keys noted that the appellant too is not a government-funded body. That may have been relevant if the appellant had been successful, wholly or in part, but he has not.
Dr Jarvis did not address the third and fourth grounds for seeking costs, and I inferred they were not pressed.
Dr Jarvis relied on HCCC v Gower[15], HCCC v Rixon[16] and Pharmacy Board of Australia v Lagos[17] each of which confirms that the tribunal has a general discretion to award costs; that the usual rule is that costs should follow the event; that an order for costs is compensatory for a successful party’s costs, not punitive; and that the Tribunal may with cause depart from the usual rule, wholly or in part, when determining an award of costs. These statements accord with general principles in the courts concerning an award of costs.
[15] [2011] NSWNMT 17 at [65] – [75]
[16] [2016] NSWCATOD 24 at [187]
[17] [2014] SAHPT 3 at [58]
Ms Keys submitted that because the Board “accepted and acted upon a vexatious notification [from his client’s ex-wife] made without his client’s consent” he incurred filing and/or hearing fees for lodging his application for review. It was then submitted that despite the fact that the appellant made concessions regarding his conduct at the hearing on 10 September 2015, he was then “put to the added expense of lodging an appeal against the original tribunal’s decision ... because the original tribunal exceeded [its] power to impose supervision.” Ms Keys submitted that it would therefore be appropriate for the respondent to pay the appellant’s disbursements, meaning the filing fee and the cost of purchasing the transcript, even if his appeal is only partially successful.
With respect, none of those additional submissions is a basis not to order the appellant to pay the respondent’s costs. I cannot accept that the ex-wife’s notification was ‘vexatious’ where the tribunal upheld the substance of her complaint. That the appellant may have incurred filing and/or hearing fees on the original application to the tribunal is irrelevant: in issue is the costs of this appeal proceeding.
I do not accept that the appellant was put to the expense of lodging an appeal against the original tribunal’s decision, despite having made concessions in the original tribunal proceeding or because the original tribunal had, allegedly, exceeded its power to impose supervision. First, as discussed in response to ground 6, I am not persuaded that the tribunal exceeded its power. Second, I expect that if the appellant had asked, the Board would readily have acknowledged by reference to orders 1(a) and (e) that if a satisfactory report is produced under order 1(d) at the end of the six months period of supervision, there would be no suggestion of any further supervision. It was unnecessary to bring an appeal simply to clarify uncertainty on the issue.
I have not progressed the question of costs for two reasons.
First, I am concerned about the form that a costs order should take. A general order that a party pay another’s costs ‘as taxed or agreed’ often causes further costs to be incurred in determining the quantum of those costs that are quite out of proportion to the amount payable under the primary costs order. For this reason, and subject to my second concern, in my view a balance ought be struck by ordering the appellant to pay a fixed sum which is comfortably within what I expect would be the respondent’s taxed costs but is a tangible contribution towards the respondent’s costs. I do not presently have evidence on quantum, but expect the respondent would readily be able to demonstrate to the appellant (if required) that an award of costs fixed in the sum of $2,000 would be well below the respondent’s costs if taxed.
Second, I am concerned that I may not have power to make a costs order under section 201 of the National Law. The appeal has been brought under section 79 of the ACAT Act, not the National Law. The question arises therefore whether any of the provisions of Division 13 of the National Law, including the power to award costs, is applicable.
I recognise that the original appeal to the tribunal was brought under Division 13 of the National Law, and that the original tribunal therefore had power under section 201 to award costs, but an application for costs was never made.
I acknowledge that Ms Keys did not advance an argument that I, sitting as the appeal tribunal, do not have power to award costs. I recognise also that an application including an appeal should ordinarily be decided according to the matters put in issue by the parties, but that does not apply in relation to jurisdiction. The Tribunal, and the appeal tribunal in this case, has a responsibility and the prerogative to determine for itself whether it has power to make orders sought.
I recognise also that neither party has had an opportunity to address either of these two concerns. For this reason, unless the Board advises the appeal tribunal that it no longer seeks costs, I intend to list the matter for further hearing on the limited questions of:
(a)whether the appeal tribunal has power to award costs under section 201 of the National Law;
(b)if so, whether I should order the appellant to pay the respondent’s costs fixed in the sum of $2,000; and
(c)if not, and the appeal tribunal’s power to award costs is only under section 48 of the ACAT Act, whether the respondent seek costs and (if so) why and for what amount.

Conclusion

For these reasons, referring to the grounds of appeal, I am unable to see any error of fact or law in the conclusions it reached. The decision under appeal will therefore be confirmed, subject to varying order 1(a) to state the date upon which the six-month period of supervision should commence. At hearing, I was informed that a psychologist to conduct the supervision has been approved by the respondent and the parties agreed that the supervision could commence two weeks from the date of the appeal tribunal’s decision if the six-month period of supervision were confirmed. Accordingly, I shall vary order 1(a) to provide that the six-month period of supervision occur ‘from 17 October 2016’.
For the reasons discussed, the matter will be relisted for hearing on the question of costs on a suitable date unless the respondent advises the appeal tribunal by 14 October 2016 that it no longer seeks costs.
………………………………..

Presidential Member G C McCarthy

HEARING DETAILS

FILE NUMBER:	AA 35/2016
PARTIES, APPELLANT:	Noel Eastwood
PARTIES, RESPONDENT:	Psychology Board of Australia
COUNSEL APPEARING, APPELLANT	Ms J Keys
COUNSEL APPEARING, RESPONDENT	Dr D Jarvis
SOLICITORS FOR APPELLANT	N/A
SOLICITORS FOR RESPONDENT	ACT Government Solicitor
TRIBUNAL MEMBERS:	Presidential Member G C McCarthy
DATE OF HEARING:	8 September 2016