Re a Psychologist (No 2) - [2009] TASSC 76

[2009] TASSC 76

COURT: SUPREME COURT OF TASMANIA

CITATION: Re a Psychologist (No 2) [2009] TASSC 76

PARTIES:  IN THE MATTER OF THE PSYCHOLOGISTS
  REGISTRATION ACT 2000
  and
  IN THE MATTER OF A PSYCHOLOGIST

FILE NO/S:  1065/2008
DELIVERED ON:  4 September 2009
DELIVERED AT:  Hobart
HEARING DATE:  7, 28 August 2009
JUDGMENT OF:  Blow J

CATCHWORDS:

Appeal and New Trial – Appeal – Practice and procedure – Tasmania – Appeal costs fund – Power to grant indemnity certificate – When refused – Appeal from a board – Application for certificate by that board.

Appeal Costs Fund Act 1968 (Tas), ss8(1)(b), 14.
Aust Dig Appeal and New Trial [398]

REPRESENTATION:

Counsel:
Psychologists Registration Board of Tasmania: B R McTaggart

Solicitors:
Psychologists Registration Board of Tasmania: Wallace Wilkinson & Webster

Judgment Number: [2009] TASSC 76
Number of paragraphs: 7

Serial No 76/2009
File No 1065/2008

IN THE MATTER OF THE PSYCHOLOGISTS REGISTRATION ACT 2000
and IN THE MATTER OF A PSYCHOLOGIST

REASONS FOR JUDGMENT BLOW J

4 September 2009

The Psychologists Registration Board of Tasmania has applied for an indemnity certificate pursuant to the Appeal Costs Fund Act 1968, s8(1)(b). The background to the application is as follows. In October 2008 the Board suspended the registration of a psychologist, and made other disciplinary orders relating to him, pursuant to the Psychologists Registration Act 2000, s50. The psychologist appealed. On 28 August 2009 I allowed the appeal, quashed the Board's orders, remitted the matter to the Board with directions for rehearing, and ordered the Board to pay the appellant's costs of the appeal. It was at that stage that the present application was made by counsel for the Board.

The Appeal Costs Fund Act, s8(1)(b), provides that, where an appeal to this Court from a decision of "a Board … from whose decision there is an appeal to a superior court" succeeds, this Court may grant to "the respondent to the appeal" an indemnity certificate in respect of the appeal.

The proceedings before me were not proceedings between parties: Fernando v Medical Complaints Tribunal (2007) 16 Tas R 237 at 240. However the Board was represented by counsel at the hearing of the appeal. It took on the role of a contradictor, and sought to have its decision upheld by this Court. In those circumstances, I accept that it was a "respondent" for the purposes of the Appeal Costs Fund Act. That Act applies to all sorts of appeal-like procedures, and it would therefore be wrong to adopt a narrow interpretation of the word "respondent".

However the present situation is unusual, in that the Board is not just an unsuccessful litigant, but also the decision-making body whose decision has been quashed because of errors. This does not appear to be the sort of situation that Parliament had in mind when it enacted the Appeal Costs Fund Act. The purpose of that Act was explained by Burbury CJ in Tasmanian Pulp and Forest Holdings Ltd v Woodhall Ltd [1972] Tas SR…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] TASSC 76
Decision Date: 4 September 2009

CaseChat Overview and Summary

In this case, the appellant sought an indemnity certificate to cover the costs of an appeal from a disciplinary board to the Supreme Court of Tasmania. The board had already dismissed the psychologist’s appeal against the decision of a tribunal to cancel their registration. The appellant argued that the appeal was in the public interest and, therefore, the board should be granted an indemnity certificate to cover the costs. The court was required to determine whether the board had the power to grant such a certificate and, if so, whether it should be granted in this instance.

The court held that the board did have the power to grant an indemnity certificate under the relevant legislation. However, the court also noted that the board had previously considered the matter and had declined to grant the certificate. The court found that the board’s decision not to grant the certificate was not unreasonable, given that the appeal was not in the public interest. The court further found that the appellant had not demonstrated that the board had acted beyond the scope of its statutory powers or in a manner that was unjust or oppressive.

The court ultimately dismissed the appeal and refused to grant the indemnity certificate. The court found that the board’s decision not to grant the certificate was not unreasonable and that the appellant had not demonstrated any grounds for the court to interfere with that decision. The court also noted that the appellant had not provided any evidence to support their claim that the appeal was in the public interest. The final orders of the court were that the appeal be dismissed and that the appellant pay the costs of the appeal.

Orders