Eastwood v Psychology Board of Australia (Appeal) (Costs) - [2016] ACAT 135

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

EASTWOOD v PSYCHOLOGY BOARD OF AUSTRALIA (Appeal) (Costs) [2016] ACAT 135

AA 35/2016 (OR 14/2015)
Catchwords: APPEAL –order for costs of appeal proceedings – lack of jurisdiction

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 48, 79
Health Practitioner Regulation National Law (ACT) ss 193, 194, 195, 199, 200, 201, 202, 203

Cases cited: Appellants v Council of the Law Society of the ACT and Legal Practitioner [2011] ACTSC 133

CIC Australia Ltd v ACT Planning and Land Authority and Ors [2013] ACTSC 96
Eastwood v Psychology Board of Australia [2016] ACAT 52
Eastwood v Psychology Board of Australia (Appeal) [2016] ACAT 110
Smith v J&C Whyte Family Trust & Anor [2016] ACAT 132
Williams Love & Nicol Lawyers Pty Ltd v Wearne [2016] ACAT 123

Tribunal: Presidential Member G C McCarthy

Date of Orders:  2 December 2016
Date of Reasons for Decision:         2 December 2016
AUSTRALIAN CAPITAL TERRITORY                   )       AA 35/2016
CIVIL & ADMINISTRATIVE TRIBUNAL                )     (OR 14/2015)
BETWEEN:
NOEL EASTWOOD
Appellant

AND:
PSYCHOLOGY BOARD OF AUSTRALIA
Respondent

TRIBUNAL: Presidential Member G C McCarthy

DATE:2 December 2016
ORDERS

The respondent’s application for costs is dismissed.
………………………………..
Presidential Member G C McCarthy

REASONS FOR DECISION

The appellant, Noel Eastwood, appealed 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
On 30 September 2016, I dismissed the appeal and published reasons for my decision.[2]
[2] Eastwood v Psychology Board of Australia (Appeal) [2016] ACAT 110
The Board sought an order that the appellant pay its costs of the appeal pursuant to section 201 of the Health Practitioner Regulation National Law (ACT) (the National Law). Regarding that application, whilst accepting the merits of the application, I said the following at paragraphs 74-76 of my reasons:
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.
The respondent nevertheless pressed for an order that the appellant pay the respondent’s costs. The matter was therefore relisted on 25 November 2016 for hearing of the respondent’s application for costs. Ms Keys of counsel appeared for the appellant. Dr Jarvis of counsel appeared for the respondent.
It is trite but important to observe that the tribunal does not have any general power to do anything. Its jurisdiction is subordinate. Any power it exercises must be grounded in statute. In particular, its power to award costs must be found in a statutory provision.[3]
[3] Appellants v Council of the Law Society of the ACT and Legal Practitioner [2011] ACTSC 133 at [83]
In the ordinary course, section 48 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) requires that the parties bear their own costs, subject to the exceptions set out in section 48(2).[4] Dr Jarvis submitted that section 48 does not apply in relation to appeals brought under the National Law. He submitted that the tribunal “may make any order about costs it considers appropriate”, pursuant to section 201 of the National Law, and that (pursuant to section 203) section 201 applies despite the contrary position in section 48 of the ACAT Act.
[4] CIC Australia Ltd v ACT Planning and Land Authority and Ors [2013] ACTSC 96; Williams Love & Nicol Lawyers Pty Ltd v Wearne [2016] ACAT 123; Smith v J&C Whyte Family Trust & Anor (Appeal) [2016] ACAT 132 at [116]-[128]
I accept that submission in relation to an appeal brought under Division 13 of the National Law. I said as much in my previous decision.[5] The question is whether section 201 applies also for appeal proceedings to the appeal tribunal from a decision of the tribunal, as in this case.
[5] Eastwood v Psychology Board of Australia (Appeal) [2016] ACAT 110 at [59] – [61]
Division 13, headed ‘Appeals’, comprised of sections 109 – 203 of the National Law states:
Division 13   Appeals
199         Appellable decisions
(1)       A person who is the subject of any of the following decisions (an appellable decision) may appeal against the decision to the appropriate responsible tribunal for the appellable decision—
(a)   a decision by a National Board to refuse to register the person;
(b)   a decision by a National Board to refuse to endorse the person’s registration;
(c)    a decision by a National Board to refuse to renew the person’s registration;
(d)   a decision by a National Board to refuse to renew the endorsement of the person’s registration;
(e)    a decision by a National Board to impose or change a condition on a person’s registration or the endorsement of the person’s registration, other than—
(i)   a condition relating to the person’s qualification for general registration in the health profession; and
(ii)   a condition imposed by section 112 (3) (a);
(f)    a decision by a National Board to refuse to change or remove a condition imposed on the person’s registration or the endorsement of the person’s registration;
(g)   a decision by a National Board to refuse to change or revoke an undertaking given by the person to the Board;
(h)   a decision by a National Board to suspend the person’s registration;
(i)    a decision by a panel to impose a condition on the person’s registration;
(j)    a decision by a health panel to suspend the person’s registration;
(k)    a decision by a performance and professional standards panel to reprimand the person.
(2)       For the purposes of subsection (1), the appropriate responsible tribunal for an appellable decision is—
(a)   for a decision to take health, conduct or performance action in relation to a registered health practitioner or student—
(i)   the responsible tribunal for the participating jurisdiction in which the behaviour the subject of the decision occurred; or
(ii)   if the behaviour the subject of the decision occurred in more than one jurisdiction, the responsible tribunal for the participating jurisdiction in which the practitioner’s principal place of practice is located; or
(b)   for another decision in relation to a registered health practitioner, the responsible tribunal for the participating jurisdiction in which the practitioner’s principal place of practice is located; or
(c)    for another decision in relation to a student, the responsible tribunal for the participating jurisdiction in which the student is undertaking the approved program of study or clinical training; or
(d)   for a decision in relation to another person—
(i)   the responsible tribunal for the participating jurisdiction in which the person lives, or
(ii)   if the person does not live in a participating jurisdiction, the responsible tribunal for the participating jurisdiction nominated by the National Board that made the appellable decision and specified in the notice given to the person of the appellable decision.
200         Parties to the proceedings
The parties to proceedings relating to an appellable decision being heard by a responsible tribunal are—
(a)   the person who is the subject of the appellable decision; and
(b)   the National Board that—
(i)   made the appellable decision; or
(ii)   established the panel that made the appellable decision.
201         Costs
The responsible tribunal may make any order about costs it considers appropriate for the proceedings.
202         Decision
(1)       After hearing the matter, the responsible tribunal may—
(a)   confirm the appellable decision; or
(b)   amend the appellable decision; or
(c)    substitute another decision for the appellable decision.
(2)       In substituting another decision for the appellable decision, the responsible tribunal has the same powers as the entity that made the appellable decision.
203         Relationship with Act establishing responsible tribunal
This Division applies despite any provision to the contrary of the Act that establishes the responsible tribunal but does not otherwise limit that Act.
For the following reasons, in my view the appeal tribunal does not have jurisdiction to make any order about costs under section 201, or otherwise under the National Law, for an appeal proceeding from a decision of the tribunal.
Section 201 is not of general application. It is a provision within Division 13, and in my view operates only within the framework of Division 13. That becomes clear both from the words in section 201 and by reading the National Law as a whole.
Division 13, referenced to section 199, permits an appeal to the “appropriate responsible tribunal” (accepted in this case to include the tribunal[6]) from any of the decisions listed in section 199. Section 201 permits the tribunal to make any order about costs it considers appropriate, not at large, but “for the proceedings”. In my view, the words ‘for the proceedings’ must mean proceedings by way of an appeal pursuant to section 199 from a decision listed in section 199.
[6] National Law, section 5
In this case, the proceedings are not an appeal pursuant to section 199 or from a decision listed in section 199. They are an appeal from a decision of the tribunal pursuant to section 79 of the ACAT Act. It follows, in my view, that neither section 201 nor Division 13 generally has any relevance or application to the appeal proceedings.
That construction accords with parallel provisions in the National Law. Division 12, comprised of sections 193 – 198, deals with matters that the Board must refer to the tribunal about a registered health practitioner or student pursuant to section 193. Sections 194 and 195 are materially identical to sections 200 and 201 quoted above. They provide:
194 Parties to the proceedings
The parties to proceedings relating to a matter being heard by a responsible tribunal are—
(a)the registered health practitioner or student who is the subject of the proceedings; and
(b)the National Board that referred the matter to the tribunal.
195 Costs
The responsible tribunal may make any order about costs it considers appropriate for the proceedings
When Divisions 12 and 13 are read together, it becomes clear that section 195 empowers the tribunal to award costs, but only for proceedings that concern referral of a matter about a registered health practitioner or student pursuant to section 193, and that its power to award costs under section 201 is only for proceedings that concern an appeal from a decision listed in section 199. Such is apparent from separate, parallel costs powers, one in each Division, rather than a general power to award costs.
Dr Jarvis submitted that I should construe the words “for the proceedings” in section 201 as including appeal proceedings from a decision made under section 202, as has occurred in this case, and should not be confined to ‘first instance’ appeal proceedings from a decision listed in section 199. He referred me to the words “the parties to proceedings relating to an appellable decision” in section 200 as indicating that the words “the proceedings” in section 201 should include not just the proceedings for an appeal from a decision under section 199 but other proceedings (i.e. subsequent appeal proceedings) that relate to those initial proceedings.
I am not so persuaded. In my view the words “relating to” in section 200 simply refer to the proceedings that constitute the appeal against a decision listed in section 199. Section 200 then identifies who the parties to those proceedings will be. The section becomes nonsensical if it were also to identify parties in different proceedings that are not brought pursuant to Division 13. Determination of parties in different proceedings brought under a different law (and section 79 of the ACAT Act in this case) is a matter to be decided under that different law.
In any event, I do not accept that section 200, commenting upon who the parties are to proceedings relating to an ‘appellable decision’ (defined as a decision of a kind set out in section 199), is relevant to the construction of section 201 concerning the tribunal’s power to order costs.
Where I am not persuaded that the appeal tribunal has power under section 201 of the National Law to award costs, section 48 of the ACAT Act remains the only section pursuant to which the appeal tribunal can award costs. I have not considered section 48 further because Dr Jarvis did not seek an order for costs under that section.

Conclusion

For these reasons, the respondent’s application for costs is dismissed.
………………………………..

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:	25 November 2016