Psychologists' Registration Board of Victoria v The Herald & Weekly Times Ltd & Ors

[2000] VSCA 118

SUPREME COURT OF VICTORIA
COURT OF APPEAL	Not Restricted

No. 7242 of 1998

PSYCHOLOGISTS REGISTRATION BOARD OF VICTORIA

Appellant

v.

(First Defendant)

THE HERALD AND WEEKLY TIMES LIMITED

- and -

First Respondent

(Plaintiff)

MR. XX

- and –

DR. YY

   Second Respondent

(Second Defendant)

Third Respondent
(Third Defendant)

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JUDGES:	WINNEKE, P., PHILLIPS and CHARLES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 June 2000
DATE OF JUDGMENT:	16 June 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 118

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Certiorari – Costs – Application for judicial review of order of Psychologists Registration Board for suppression of names of parties before the Board – Circumscribed role of Board in court proceedings – Discretion of court – Whether costs to be awarded against Board – Appeal allowed – Psychologists Registration Act 1987 s.11(3).

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APPEARANCES:	Counsel	Solicitors
For the Appellant      (First Defendant)	Mr. J.L. Bourke	Minter Ellison
For the First Respondent      (Plaintiff) For the Second Respondent      (Second Defendant) For the Third Respondent      (Third Defendant)	Mr. W.T. Houghton, Q.C. and Mr. D. Bennett Mr. M.A. Strang Mr. S.J. Moloney	Corrs Chambers Westgarth Pryles & Defteros J.W. Ball & Sons

WINNEKE, P.: 

1. I will invite Charles, J.A. to deliver the judgment of the Court in this matter.

CHARLES, J.A.: 

1. The Psychologists Registration Board of Victoria ("the Board") is a body established by the Psychologists Registration Act 1987 ("the Act"). It comprises nine persons nominated by the appropriate Minister, one of whom is to be a barrister and solicitor. The Board has a number of functions which are broadly divided into administrative and regulatory functions. It maintains a register of psychologists and entertains applications from qualified persons to be placed on the register. In the exercise of its function of regulating the conduct of psychologists, it is empowered to conduct inquiries into the capacity or professional conduct of a registered psychologist, following which it may suspend or cancel registration. In conducting such inquiries, the Board is invested with the powers conferred upon Boards of Inquiry by ss.14-16 of the Evidence Act 1958 and also enjoys the privileges and immunities conferred by s.21A of that Act upon such Boards.

1. In 1997 and 1998 the Board conducted an inquiry into the professional conduct of a registered psychologist (the "second respondent").  The inquiry arose out of a complaint by a registered medical practitioner (a psychiatrist and the third respondent, but we will call her "the complainant"), who had become a patient of his.  The thrust of the complaint was that the second respondent had taken advantage of his position to form an inappropriate relationship with the complainant.  The proceedings began in October 1997 and continued - with long adjournments - until October 1998.  At the outset of the hearing, senior counsel assisting the Board submitted that it should close its proceedings and take the evidence in camera.  The Board resisted that submission, concluding that there were no special circumstances to justify the inquiry being closed to public scrutiny.  Thereafter the inquiry proceeded in a desultory fashion, taking evidence from the complainant and other witnesses, until August 1998.  The delay was due, largely, to the illness of a member of the Board.  The proceedings, notwithstanding that they were conducted in public, at first attracted no apparent interest from outside parties.  But in September 1998 it became the turn of the second respondent to give evidence and a journalist from the Herald and Weekly Times Ltd ("the Herald") was present, no doubt for the purpose of recording and publishing the evidence given by him.  Counsel for the second respondent contended that the Board should order that the name of his client be suppressed on the basis that it would be unfair for one of the protagonists to have his evidence "dealt with in the public arena", and also because due to certain personal circumstances seriously affecting him at the time, the second respondent could not do himself justice if his evidence was to be publicised.

1. In aid of this submission, counsel contended that the Board had power to regulate its own proceedings to ensure that justice was done and relied upon s.11(3) of the Act which gave the Board the broad power:

"to do all things which are required ... to be done or which are necessary and convenient to be done for or with respect to the performance by the Board of its functions."

Counsel also submitted that the Board has an inherent or implied power to conduct its proceedings in a manner which would best enable it to get to the truth of the matter and, in so submitting, relied upon the decision of Coldrey, J. in C.E. & M.Q. v.Medical Practitioners' Board[1]  as authority for the Board having such power.

[1](1977) 1 V.A.R. 175

1. Counsel assisting the Board then queried whether the Board had the necessary power to suppress the identity of the second respondent, having regard to the more recent decision of Hedigan, J. in Herald and Weekly Times v. Medical Practitioners' Board & Anor.[2] His submission concluded in the following terms -

"[P]erhaps all I should say is that it seems to us that Mr Justice Hedigan's decision is at least not obviously wrong.  One might say the same about Mr Justice Coldrey's decision, and I might point out that we have asked for Mr Justice Coldrey's decision to be brought up so that we hopefully will be able to provide the Board with that in due course.

We are reluctant to encourage the Board to assume a power which it may not have in the face of Mr Justice Hedigan's decision.  So far as the exercise of the power, if the Board determines that it has such a power, certainly the authorities cited by Mr Justice Hedigan would seem to support the view that the bases put out for the exercise of that discretion in favour of suppression might be said to be insufficient.

Now, ultimately, it is a matter for the Court to determine but we simply invite the Board to exercise a degree of caution."

[2][1999] 1 V.R. 267.

1. The Herald had by then briefed counsel to make submissions on its behalf to the Board and, of course, opposed the making of any order for suppression.  Ultimately the Board ruled that:

"In the unusual circumstances that have arisen at this stage of the inquiry, the Board has concluded that justice may be defeated unless we make a suppression order.  We believe that subs.(3) of s.11 of the ... Act gives us of the power to make such an order.  Accordingly this Board, until further order, prohibits the publication of the names of [the psychologist] and [the complainant] and publication of anything which might tend to identify either of them with the subject matter of this inquiry."

1. The Herald then challenged this order by making an application for certiorari in the Trial Division of this Court pursuant to Order 56 of the Rules of Court.  The application sought the quashing of the Board's order on the ground that the Board had no power or jurisdiction to make the order for suppression.  The application was heard on 21 and 22 October 1998 and the judge heard submissions from counsel for the Herald (as plaintiff) and for the Board, the second respondent and the complainant, who were all named as defendants to the application.  In accordance with the authority of R. v. Australian Broadcasting Tribunal, ex p. Hardiman & Ors,[3] the Board made no submissions on the merits of the application and submitted to such decision as the court might make. Counsel for the Board did, however, make submissions about the scheme of the Act and other similar pieces of legislation and submitted that the Board had the power to suppress names.

   [3](1980) 144 C.L.R. 13 at 35.

1. The judge eventually concluded that the Board had no power to make the suppression order and accordingly quashed that order.  There is now no appeal from that decision.  At the conclusion of the hearing, the Herald, which had succeeded in its application, applied for costs.  The Herald's counsel said -

"As is the practice of my client, we don't seek costs against the [Board], we only seek costs against the second and third defendants and seek no order of costs be made in relation to the [Board]."

Implicit in this was that the second respondent had made the original application for the suppression order and the complainant had, in effect, benefited from the application. During argument the judge suggested that the second respondent and the complainant were, to an extent, "victims" of the order made by the Board in the sense that they had had to come before the court and attempt to uphold the Board's order and that such difficulties as had arisen stemmed from the Board not heeding the advice of counsel assisting on two occasions. The judge then asked why, in those circumstances, it should not be the Board that paid the Herald's costs. No suggestion was made that the Board had acted otherwise than in good faith and no reference was made in argument to s.21A of the Evidence Act.  Counsel for the Board strongly submitted that the Board should not be ordered to pay costs.  Counsel for the Herald, in reply, adopted the submissions made on behalf of the Board but continued, "If your Honour disagrees with Mr Bourke [counsel for the Board], then we seek our costs from the first defendant."

1. The judge ordered that the Herald's costs should be paid by the Board.  No order for costs was made for or against any other party.  The judge gave reasons for this decision and from those reasons it appears that the exercise of discretion was much influenced, as the judge stated, by the view that the Board had failed to have regard to the advice tendered to it by counsel assisting.  It was said that counsel assisting had alerted the Board to the possibility that it had no power to make the suppression order (as in the result was found on the application for certiorari) and on that account the judge considered that the order for costs should be against the Board, not the other parties.

1. On the hearing of the appeal we have heard submissions from counsel for the Board (the appellant), and for the Herald, the second respondent and the complainant.  The interests of the second and third respondents in this appeal are not readily apparent because the judge made no order for costs against those parties and no cross-appeal has been filed by the Herald.  The only order in dispute is the order made by the judge against the Board.

1. The Herald's counsel has submitted to us that in the absence of strong reasons, an appellate court will not interfere with the discretion of the court below with respect to costs; see for example McCauley v. McCauley.[4] On the other hand, there is a very-well established line of authority which holds that costs ought not to be awarded against a statutory tribunal which makes an order in excess of its powers unless it can be demonstrated that the tribunal has been guilty of serious misconduct or corruption or has acted perversely.[5]

   [4](1910) 10 C.L.R. 434 at 455.

   [5]R. v. Liverpool Justices, ex parte Roberts [1960] 1 W.L.R. 585 at 586-7; Our Town FM Pty. Ltd. v. Australian Broadcasting Tribunal & Anor. (No.3) (1987) 77 A.L.R. 609 at 612; City of Subiaco v. Minister for Planning and Heritage (1996) Butterworths Unreported Judgments BC 9700422 at 6;  Munro v. West, Unreported, Smith, J., 7 March 1997 at page 1;  Charter Homes Pty. Ltd. v. Housing Guarantee Fund Ltd. & Ors., Unreported, Chernov, J., 10 June 1997 at page 3.

1. It not infrequently happens that statutory tribunals will be asked by one or other of the parties to make suppression orders in matters which affect the interests of the media.  Nor is it uncommon that media interests are given leave to make submissions contesting these applications.  If, however, the tribunal makes an order contrary to the interests of the media and such order is subsequently successfully challenged, it should be a rare case indeed where the court will order costs of the successful challenge against the tribunal.  If it were otherwise, statutory tribunals would be discouraged from making determinations, pertinent to their own proceedings, for fear of being ordered to pay costs.  It was no doubt considerations such as these which led counsel for the Herald to make as its primary submission below that no order be made for costs against the Board.  Indeed, as we have said, counsel for the Herald expressly adopted the submissions by counsel for the Board.  It was never suggested there that the Board did anything other than treat the issue as a very important one, but an issue which was made very difficult by the conflicting authorities.

1. It is perhaps significant that in the reasons for decision relating to costs, which of course were stated only briefly, no reference was made to the authorities bearing upon an order for costs against one in the position of the Board;  the question was not explored in any detail below, no doubt because it was not the Herald's primary application that the Board should be responsible for its costs.  But in light of the stream of authority to which we have already referred, we are satisfied that there was no sound basis in principle for the order made.  Indeed, counsel for the Herald did not advance any argument in this Court in support of the grounds taken by the judge for making the order for costs.

1. The order below was made in the context of the judge's accepting that the Board took no more part in the application for certiorari than was warranted by the decision in Hardiman.  The judge expressly said so.[6]  And nothing had been said to the contrary when the Herald made its application for costs.  Yet on this appeal the Herald's counsel sought to argue that the Board had in fact gone beyond what was permitted by Hardiman and in so doing had drawn upon itself a liability for costs when the judge held that it had no power to make the suppression order.  Notwithstanding counsel's forceful argument in this regard, we see no reason why the Herald should now be permitted to raise this argument.  Indeed, as the Board's counsel pointed out, those in the best position to know whether or not the limits imposed by Hardiman had been exceeded were, first, the judge, and next, the parties below.  The judge said that those limits had not been transgressed; the parties made no submission to the contrary; and the Herald filed no notice of contention in relation to this argument in this Court.  In any event, our examination of the transcript of the argument below satisfies us that the Board did not go beyond what was permitted by Hardiman.

   [6]In [48] of the reasons for decision to quash the suppression order.

1. In the circumstances we have no doubt that the judge's discretion as to costs miscarried; there was no basis for the making of any order for costs against the Board and no such order ought to have been made.  Notwithstanding the reluctance of an appellate court to interfere with the exercise of a discretion below as to costs, the order must be set aside.  The question then arises whether the Herald should be granted its costs below against the second respondent and the complainant (since one was the applicant for the suppression order and the other made common cause with the second respondent before the judge).  There is a question whether there should have been some formal notice given by the Herald if it sought to have us substitute such an order in the re-exercise, as it were, of the judge's discretion; but in the end it does not matter.  Having heard the arguments and considered them carefully, we think that in the proper exercise of discretion there should have been no order for costs below.

1. During the argument counsel for the second respondent sought to have us consider a further affidavit which he sought to file exhibiting the article published by the Herald as soon as the suppression order had been lifted.  In the event, it is unnecessary to rule upon whether we should receive it into evidence and we pay no regard to it.

1. Accordingly, we would allow the appeal, set aside the order for costs and order instead that there be no order for costs below.  As for the costs of the appeal, the Board has succeeded.  The second respondent and the complainant were joined because, as the Board saw it, they had an interest in seeking to maintain the order for costs below because, if it were set aside, an order for costs might be made against them (either when the matter was remitted or by the appellate court exercising the judge's discretion).  In all the circumstances, subject to any submission the parties may wish to make, we think the Herald should pay the costs of the other parties to this appeal.

1. We will grant the Herald a certificate under the Appeal Costs Act.

WINNEKE, P.: 

1. The formal order of the Court is that the appeal is allowed and that the order made below, in paragraph 5 of the orders made by her Honour on 18 November 1998, be set aside and that in lieu thereof there be no order for costs of the proceedings below.

1. Does anybody want to say anything about the costs of this appeal?

1. In those circumstances, we will order that the first-named respondent pay the costs of the other parties to this appeal and we will grant a certificate pursuant  to the Appeal Costs Act to the first-named respondent, the Herald.