HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010 (WA)

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JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT : HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010 (WA)
CITATION : SIVATHASAN and MEDICAL BOARD OF AUSTRALIA [2024] WASAT 67 (S)
MEMBER : JUDGE F VERNON, DEPUTY PRESIDENT
MR D AITKEN, SENIOR MEMBER
DR H HANKEY, SENIOR SESSIONAL MEMBER
HEARD : DETERMINED ON THE DOCUMENTS FILED BETWEEN 5 AUGUST 2024 AND 4 NOVEMBER 2024
DELIVERED : 4 APRIL 2025
FILE NO/S : VR 23 of 2023
BETWEEN : NIROSHAN SIVATHASAN
Applicant
AND
MEDICAL BOARD OF AUSTRALIA
Respondent
Catchwords:
Application for costs pursuant to s 201 of the Health Practitioner Regulation National Law (Western Australia) – Medical practitioner successful in review application of Medical Board’s decision to impose conditions on registration – Whether s 87(1) of the State Administrative Tribunal Act 2004 (WA) is inconsistent with s 201 of the National Law – Principles for the exercise of discretion to award costs under s 201 of the National Law – Exercise of discretion
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to award costs
Legislation:
Civil and Administrative Tribunal Act 1998 (Vic), s 109, s 109(1)
Civil and Administrative Tribunal Act 2013 (NSW), s 60
Health Practitioner National Law and Other Legislation Amendment Act 2009 (Qld), Schedule
Health Practitioner Regulation National Law (2009) (NSW), Sch 5D, cl 13(4)
Health Practitioner Regulation National Law (Western Australia), s 3(2)(a), s 3(2)(e), s 3(3)(c), s 193, s 195, s 199, s 199(1)(a), s 199(1)(a)(aa), s 199(1)(b), s 199(1)(c), s 199(1)(d), s 199(1)(e), s 199(1)(f), s 199(1)(g), s 199(1)(h), s 199(1)(ha), s 199(1)(hb), s 199(1)(i), s 199(1)(j), s 199(1)(ja), s 199(1)(k), s 199(2)(b), s 201, s 203
Health Practitioner Regulation National Law 2010 (WA), Schedule
Health Practitioner Regulation National Law Application Act 2024 (WA), s 5, s 19, s 36
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100
State Administrative Tribunal Act 2004 (WA), Pt 3, Div 3, s 5, s 9, s 18, s 31(1), s 31(2)(c), s 47, s 87, s 87(1), s 87(2), s 87(3), s 87(4)
State Administrative Tribunal Rules 2004 (WA), r 41(2)
Result:
Costs application partially successful
Category: B
Representation:
Counsel:
Applicant
:
N/A
Respondent
:
N/A
Solicitors:
Applicant
:
Gardner Legal & Regulatory Pty Ltd
Respondent
:
Clayton Utz
Case(s) referred to in decision(s):
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Attudawage v Medical Board of Australia (No 4) [2011] QCAT 626
Butler v Attorney-General (Vic) (1961) 106 CLR 268
Howard v Psychology Board of Australia [2018] ACAT 127
Kolta and Psychology Board of Australia (Review and Regulation) (Costs) [2023] VCAT 108
Lee and Pharmacy Board of Australia [2021] WASAT 132 (S)
Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182
Medical Board of Australia and Tan [2022] WASAT 57 (S)
Northern Territory v Sangare (2019) 265 CLR 164
Ohn v Walton (1995) 36 NSWLR 77
Oshlack v Richmond River Council (1998) 193 CLR 72
Panegyres v Medical Board of Australia [2020] WASCA 58
Sivathasan and Medical Board of Australia [2024] WASAT 67
Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32 White v Medical Board of Australia [2024] NSWCATOD 80
Zhang v Chinese Medicine Board of Australia [2015] QCAT 53
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REASONS FOR DECISION OF THE TRIBUNAL:
Summary
1
On 10 April 2024, on an application for review by Niroshan Sivathasan (Practitioner), we decided to set aside a decision by the respondent Board to grant the Practitioner general registration as a medical practitioner with conditions and to order that the Practitioner be granted registration without conditions. Our reasons are set out in Sivathasan and Medical Board of Australia [2024] WASAT 67 (Reasons).
2
The Practitioner now seeks an order that the Board pay his costs of the review proceedings. The Respondent submits that each party should bear their own costs of the proceedings.
3
We have decided that the Board should be ordered to pay the Practitioner’s costs on a party/party basis from, and including, 5 February 2024. Our reasons are set out below.
History of the proceedings and findings of fact
4
The history of the Practitioner’s application for registration, the deemed refusal of that application, the commencement of the proceedings and the Board’s reconsideration of the application for registration are set out in the Reasons as follows:
87 By an application dated 27 August 2022 the Practitioner reapplied for general registration. The Practitioner listed his place of practice as being in Western Australia.
88 On 17 November 2022, AHPRA wrote to the Practitioner and advised, that, given they were awaiting further information to enable his application for general registration to progress, they recommended that the deadline for finalising his application, which was 13 December 2022, be extended to 13 March 2023.
89 At a meeting on 29 November 2022, the Board’s National Special Issues Committee (Cosmetic Practice Matters) considered Notification 5 and recommended that the Board investigate the Practitioner saying that there was insufficient information to form a view about the Practitioner’s professional performance and further investigation was necessary to accurately assess any risk associated with him.
90 On 6 December 2022, AHPRA wrote to the Practitioner and again sought to extend the deadline for finalising his application to 13 March 2023 although said they hoped to be able to
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communicate a decision before Christmas. In correspondence later the same day AHPRA confirmed that the Board would consider the application and the assessment report at its next meeting.
91 On 20 December 2022, the Board determined to grant general registration to the Practitioner subject to conditions. On 28 December 2022 AHPRA advised the Practitioner of that decision.
92 On 3 January 2023 the Practitioner advised AHPRA that he did not accept the proposal. This was confirmed by the Practitioner’s solicitors on 29 January 2023 at which time they provided detailed written submissions to the Board.
93 On 14 February 2023, AHPRA sought a further extension of time for the Board to make a decision to 13 June 2023. The Practitioner did not agree to the extension of time, and, on 13 March 2023, the Board was deemed to have refused the Practitioner’s application for general registration.
94 On 29 March 2023, the Practitioner applied for review of the deemed refusal to grant registration.
95 On 15 June 2023, the Medical Council transferred management of Notification 1, Notification 2, and Notification 3 to AHPRA on the basis that the Practitioner’s principal place of practice was Western Australia.
96 On 19 June 2023, the HCCC transferred Notification 4 to the Board, on the basis that the Practitioner’s principal place of practice was Western Australia.
97 On 3 August 2023, pursuant to s 31(2)(c) of the SAT Act, the parties agreed that the matter be referred to the Board for reconsideration of the original decision.
98 On 23 September 2023, the Board advised the Practitioner of the Decision.1
5
The ‘Decision’ referred to in [98] of the Reasons was the Board’s decision, pursuant to s 31(2)(c) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) to set aside its original decision and to grant general registration with conditions that differed from those originally proposed (Reconsidered Conditions).2 The Reconsidered Conditions are set out at [60] of the Reasons as follows:
1 Sivathasan and Medical Board of Australia [2024] WASAT 67 (Reasons) at [87] to [98].
2 Reasons at [5].
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The conditions imposed by the Board on the Practitioner’s general registration by the Decision (Conditions) required that the applicant:
(a) practise at a place of practice approved by the Board and that the Practitioner must not perform surgery until he holds admitting rights to a proximate private hospital;
(b) be mentored by another registered health practitioner with experience in cosmetic surgery in relation to:
(i) pre-operative assessment including informed consent;
(ii) post-operative care including a review of complications, post-operative treatment plans and reviews and revision procedures;
(iii) professional and ethical obligations including the consequences of unethical professional conduct;
(iv) developing and applying insight and reflection for the purpose of improvement to patient care;
(v) clinical record keeping; and
(c) submit to an audit of practice within two months and thereafter on a quarterly basis, to focus on medical record keeping and good patient care, and which must include all cosmetic surgery procedures.
6
The additional history of the proceedings is set out in three affidavits of the Practitioner’s solicitor, David Gardner, affirmed on 5 September, 21 October and 4 November 2024, and the affidavit of the Board’s solicitor, Ziad Chami, sworn on 1 October 2024. That history is not in dispute and is relevantly summarised in [7] to [23] below. We make findings of fact in accordance with those paragraphs.
7
By email dated 2 November 2022, a regulatory officer at the Australian Health Practitioners Regulatory Agency (Ahpra), Lisa Osborne, asked the Practitioner to confirm his intended principal place of practice address and residential address, noting that his application for registration named his principal place of practice as Western Australia (WA) and his residential address as being in New South Wales (NSW).3
8
By email dated 2 November 2022, the Practitioner replied to Ahpra saying that the principal place of practice was WA and that his current
3 Exhibit ZC-2 to the affidavit of Zaid Chami dated 1 October 2024 at page 7.
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residence was in NSW but that he had plans to relocate to WA when he
obtained registration.4
9
By email dated 14 February 2023, Ms Osborne sought an extension of time from the Practitioner, to 13 June 2023, to consider his solicitors’ submission concerning the conditions the Board proposed placing on the Practitioner’s registration (Original Conditions).5
10
By email dated 15 February 2023, Mr Gardner said that the Practitioner did not consent to the extension of time but said that the Practitioner may consider a short further extension of time if given adequate detail of the reasons for the extension and the date on which the matter would be considered by the Board.6 Mr Gardner sought a response to this email by emails dated 28 February and 6 March 2023. 7
11
By email dated 9 March 2023, Ms Osborne advised that she had been on unplanned leave and said:8
The submissions are requiring significant review before we can proceed to the Board for a further decision. At this stage, I anticipate that the matter will be before the Board in early April and the outcome advised shortly thereafter.
Please confirm [the Practitioner’s] agreement to this extension, in writing via return email by no later than 13 March 2023 which is the current finalisation date.
12
By email dated 9 March 2023, Mr Gardner responded to Ms Osborne’s email of that date saying, in part:
… my client is willing to agree to a final extension of one-month to 13 April 2023, to allow the Board to consider the matter.9
13
On 13 March 2023, Mr Gardner requested a response to his email of 9 March 2023 as a matter of urgency.10 Ahpra did not respond to either email before 5 April 2023.11 As has been said, on 29 March 2023, the Practitioner commenced these proceedings.
4 Exhibit ZC-2 to the affidavit of Zaid Chami dated 1 October 2024 at page 7.
5 Exhibit ZC-6 to the affidavit of Zaid Chami dated 1 October 2024 at pages 24 and 25.
6 Exhibit ZC-6 to the affidavit of Zaid Chami dated 1 October 2024 at page 24.
7 Exhibit ZC-6 to the affidavit of Zaid Chami dated 1 October 2024 at page 23 and 22 respectively.
8 Exhibit ZC-6 to the affidavit of Zaid Chami dated 1 October 2024 at page 22
9 Exhibit ZC-7 to the affidavit of Zaid Chami dated 1 October 2024 at page 26.
10 Exhibit DG-1 to the affidavit of David Gardner dated 5 September 2024 (first page).
11 Exhibit DG-1 to the affidavit of David Gardner dated 5 September 2024 (eighth page).
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14
By letter to Mr Gardner dated 18 April 2023, after the Practitioner had commenced the proceedings, the Board’s solicitors, in summary:
(a) asked the Practitioner to agree to the Tribunal making orders under s 31(1) of the SAT Act inviting the Board to reconsider its deemed refusal of the Practitioner’s application for registration; and
(b) said that, in their view, there had been no deemed refusal of the application on the basis that there had been an agreement to extend the time for the Board to determine the application to 13 April 2023 and that it remained open to the Board to seek dismissal of the application on that basis. 12
15
By letter dated 2 May 2023 to the Board’s solicitors, Mr Gardner said, in summary:
(a) as there had been no reply to his email of 9 March 2023, despite Mr Gardner seeking a response on 13 March 2023, there had been no concluded agreement to extend the deadline for determining the application to 13 April 2023;
(b) given the lack of agreement, the deemed refusal of the application occurred on 13 March 2023, and the time to appeal would have expired on 10 April 2023; and
(c) the Practitioner did not agree to an order to refer the matter to the Board for reconsideration..13
16
By letter dated 16 June 2023 to the Practitioner’s solicitors, the Board’s solicitors said, in summary, that they considered the application was liable to be dismissed under s 47 of the SAT Act on the basis that NSW was the appropriate jurisdiction for the proceedings. They sought the Practitioner’s agreement to withdraw the proceedings by 23 June 2023, failing which, they said, they would seek instructions to bring an application to dismiss the proceedings.14
17
By letter dated 24 June 2023 from the Practitioner’s solicitors to the Board’s solicitors, the Practitioner offered to settle the proceedings,
12 Exhibit ZC-8 to the affidavit of Zaid Chami dated 1 October 2024 at pages 31 and 32.
13 Exhibit ZC-9 to the affidavit of Zaid Chami dated 1 October 2024 at pages 34 to 43.
14 Exhibit ZC-10 to the affidavit of Zaid Chami dated 1 October 2024 at pages 44 and 45.
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which offer was open to be accepted to 3 July 2023 (
First Offer). In summary, the terms of the First Offer were that:
(a) the Board was to:
(i) grant the Practitioner registration without condition or undertaking on the public register; and
(ii) make a contribution of $10,000 towards the Practitioner’s costs, said to be a little less than a third of his estimated costs to that date;
(b) the Practitioner promised the Board that he would:
(i) clinically practice only in Sydney and Perth for the first six months after registration is granted;
(ii) not undertake surgery for a period of three months from the date his registration application was granted, to enable the Board or another regulator to consider any open matters before it and assess whether there was any risk that necessitated some form of interim action pending finalisation of the matters;
(iii) inform his insurer that he would not perform surgery for three months after gaining registration;
(iv) within six months of registration, complete education in relation to consent and ethics;
(v) undertake two additional hours of mentoring with a senior practitioner in relation to post-operative care;
(vi) provide Ahpra with ongoing information regarding his practice to evidence compliance with his promises; and
(vii) provide Ahpra with consent to contact Medicare to confirm compliance.15
18
By letter dated 7 July 2023 to the Practitioner’s solicitors, the Board’s solicitors said that they were instructed to bring an application to have the matter referred to the NSW Civil and Administrative Tribunal
15 Exhibit DG-2 to the affidavit of David Gardner dated 5 September 2024 (first to sixth pages).
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on 14
July 2023, unless an informal resolution was reached between the parties.16
19
By a separate letter dated 7 July 2023 to the Practitioner’s solicitors, the Board’s solicitors said that they were instructed to reject the First Offer, on the basis that there was no mechanism by which the Board could accept a practitioner’s promise and circumvent the obligation to record conditions on the National Register. They said that the only means by which the matter could be resolved was by way of the imposition of conditions, and that the Board maintained the Original Conditions were appropriate.17
20
By letter dated 19 July 2023 to the Board’s solicitors, Mr Gardner responded to the letter of 7 July 2023 to the effect that the Practitioner was concerned at the delay he had already experienced and the prospect of further delay by the threatened application, and said that the Practitioner would agree to an order that the matter be referred to the Board for reconsideration.18 As has been said, the matter was subsequently referred to the Board for reconsideration of its decision, resulting in the Practitioner being granted registration subject to the Reconsidered Conditions.
21
On 15 January 2024, the Practitioner’s solicitors wrote to the Board’s solicitors and offered to settle the proceedings without prejudice save as to costs, on the following basis (Second Offer):
[The Practitioner] offers to provide an undertaking to the Board (which would appear on the Register) not to practise any surgery that would require sedation or which would be required to be performed in a hospital or registered facility, until the completion of the investigation (at which time the Board would then be in a position to make a final decision on the matter). That undertaking would also include the usual ‘mechanical’ provisions to enable monitoring by the Board.
That undertaking would replace the conditions currently on [the Practitioner’s] registration.
[The Practitioner] would withdraw the proceedings in the Tribunal; and
The parties bear their own costs.19
16 Exhibit ZC-11 to the affidavit of Zaid Chami dated 1 October 2024 at page 46.
17 Exhibit DG-2 to the affidavit of David Gardner dated 5 September 2024 (seventh page).
18 Exhibit ZC-12 to the affidavit of Zaid Chami dated 1 October 2024 at pages 47 and 48.
19 Exhibit DG10 to the affidavit of David Gardner affirmed 4 November 2024.
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22
The Second Offer was said to be open to be accepted until 5.00 pm WST on 25 January 2024. However, the time for acceptance of the Offer was extended by agreement between the parties to 9 February 2024.20 The Second Offer also said that it might be produced to the Tribunal on the issue of costs.
23
By email dated 5 February 2024, the Board’s solicitors told the Practitioner’s solicitors that the Board did not accept the Second Offer.21
Parties’ submissions
The Practitioner’s submissions
24
The Practitioner seeks his costs of the proceedings as follows:
(a) on an indemnity basis; alternatively;
(b) on a party/party basis up to 24 June 2023 (when the First Offer was made) and thereafter on an indemnity basis; alternatively;
(c) on a party/party basis up to 15 January 2024 (when the Second Offer was made) and thereafter on an indemnity basis; alternatively; and
(d) on a party/party basis.
25
The Practitioner seeks an order for costs under s 201 of the Health Practitioner Regulation National Law (Western Australia) (National Law).22 The Practitioner submits that the presumption in s 87(1) of the SAT Act, that parties bear their own costs of proceedings in the Tribunal, is inconsistent with s 201 and that s 201 therefore prevails to displace the presumption.
26
The Practitioner submits that, in any event, there is a residual discretion under s 87(2) of the SAT Act to award costs in appropriate circumstances, which should be exercised when it is fair and reasonable to do so.
27
The Practitioner submits that, under s 201 of the National Law, it is not necessary to show that a party has been unreasonable for costs to be
20 Exhibit DG-2 to the affidavit of David Gardner dated 5 September 2024 (11th and 12th pages).
21 Exhibit DG-2 to the affidavit of David Gardner dated 5 September 2024 (eighth page). The correspondence indicates an extension of time was obtained to 9 February 2024 to respond to the offer.
22 Set out in the Schedule to the Health Practitioner National Law and Other Legislation Amendment Act 2009 (Qld) as in force on 10 October 2023, which applies in Western Australia by s 5 of the Health Practitioner Regulation National Law Application Act 2024 (WA) (Application Act).
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ordered against that party, and that such a requirement
‘conflicts with the clear wording of section 201’. However, in any event, the Practitioner submits that the Board took an unreasonable position in the proceedings resulting in unnecessary expense for the Practitioner, by:
(a) failing to make a decision on the merits on the Practitioner’s application for registration, which resulted in the Practitioner being unable to practice;
(b) imposing the Reconsidered Conditions, which were unreasonable and without a proper basis; and
(c) delaying the proceedings by taking unfounded jurisdictional objections.
28
The Practitioner submits that, even if the Board’s position was reasonable at the time it was made on 28 December 2022, which he says it was not, it was unreasonable to maintain that position after 29 January 2023, when the Board received the Practitioner’s submissions in response to the proposed conditions.
29
The Practitioner submits that the Reconsidered Conditions, and the Board’s conduct in maintaining at the hearing that they were necessary and appropriate, were also unreasonable in circumstances where:
(a) the Board placed substantial weight on the contents of a performance assessment report dated 29 June 2022, prepared for the Medical Council of New South Wales (Assessors’ Report), despite having the Practitioner’s solicitors’ letter dated 29 January 2023 detailing the shortcomings of that report;
(b) the Board ought to have conducted the exercise undertaken by the Tribunal at [134] to [148] of the Reasons, of analysing the Report and the criticism actually made of the Practitioner in it and, in particular, should have taken account of the fact that the authors of the Assessors’ Report (Assessors) had formed opinions about the Practitioner’s professional performance based on an incorrect understanding of the Practitioner’s disciplinary history; and
(c) the evidence the Board relied on at the hearing was not capable of supporting the Reconsidered Conditions and it failed to establish a connection between the Reconsidered Conditions and
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the allegations that the Board relied on in imposing those conditions.
30
The Practitioner says that, in the circumstances where the Board was of the view that it was unable to accept a promise made by a practitioner, as opposed to an undertaking, the Practitioner ‘does not put the [Board’s] refusal of [the First Offer] more highly than it is simply a factor for the Tribunal to consider’. However, the Practitioner submits that the Board’s refusal of the Second Offer is so unreasonable that indemnity costs should flow from the date of that refusal. The Practitioner submits that the Second Offer was more favourable to the Board than the outcome achieved and dealt with what was said to be the Board’s principle concern in relation to the Practitioner’s practice, by preventing him from performing surgery entirely.
31
In addition, the Practitioner says that the Board took unfounded jurisdictional issues, and caused further delay, by asserting that there had been no deemed refusal of the application and that the Tribunal was not the appropriate forum in circumstances where no applications based on these assertions were made to the Tribunal.
32
The Practitioner seeks a lump sum costs order in this matter and has submitted invoices in support of such order. However, the Practitioner acknowledges that the determination of the appropriate quantum will depend on the exact terms of any costs order we decide to make. The Practitioner seeks to make further submissions, if a costs order is made, as to the appropriate quantum.
The Board’s submissions
33
The Board submits that s 201 of the National Law does not remove the presumption in s 87(1) of the SAT Act, that parties will bear their own costs of proceedings before the Tribunal. The Board submits that the power in s 201 is additional to the power conferred by s 87(2) of the SAT Act.
34
The Board submits that the Tribunal has a well-established practice in review proceedings that normally each party should bear their own costs of the proceedings, notwithstanding s 201 of the National Law, and says that there is no proper basis to depart from that practice.
35
The Board submits that, in circumstances where there is no evidence to support a finding that the Board did not genuinely attempt to make a decision on the merits, or acted unreasonably, there is no basis
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for making a costs order against it. The Board submits that the fact that
the Tribunal determined conditions on the Practitioner’s registration were not necessary or desirable does not justify a conclusion either that the Board acted unreasonably or did not genuinely attempt to make a decision on the merits.
36
The Board relies, in particular, on its having sought the Practitioner’s agreement to the matter being referred to the Board for reconsideration as evidencing its genuine attempts to reach a decision. The Board says that, without the Practitioner’s consent, the Board was not permitted to make a decision after the proceedings were commenced. The Board says that the contents of the Decision, and the difference in the Original Conditions and the Reconsidered Conditions, evidence that appropriate consideration was given to the information it had received after the original decision was made.
37
The Board submits that the procedural issues were reasonably raised, properly put to the Practitioner’s representatives for consideration, and did not cause delay.
38
The Board submits that it was not unreasonable for it not to accept the Second Offer because:
(a) the Reconsidered Conditions arose from the recommendations in the Assessors’ Report as being suitable to remedy the deficiencies identified in that report; and
(b) the letter containing the Second Offer alleged that the Board’s position was unlawful, despite that not being the Practitioner’s position at the hearing and contrary to the Tribunal’s express finding.
Issues
39
In light of the submissions, the issues for us to determine are:
(a) is s 87(1) of the SAT Act inconsistent with s 201 of the National Law;
(b) what are the relevant considerations for the exercise of the discretion to award costs under s 201, in light of the answer to issue (a) above;
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(c) should the Tribunal exercise its discretion to order the Board to pay the Practitioner’s costs of the proceedings, or any part of those costs, and if so, to what extent; and
(d) if a costs order is made against the Board, should the Board be ordered to pay any part of the costs ordered on an indemnity basis.
Is s 87(1) of the SAT Act inconsistent with s 201 of the National Law?
The legislative provisions
40
Section 201 of the National Law provides as follows:
The responsible tribunal may make any order about costs it considers appropriate for the proceedings.
41
The current National Law came into force by the enactment of the Health Practitioner Regulation National Law Application Act 2024 (WA) (Application Act) on 15 May 2024. The legislation applying before that date contained a provision in identical terms to s 201 of the National Law.23
42
Section 87 of the SAT Act provides that:
(1) Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal.
(2) Unless otherwise specified in the enabling Act, the Tribunal may make an order for the payment by a party of all or any of the costs of another party or of a person required to produce a document or other material on the application of the party under section 35.
(3) The power of the Tribunal to make an order for the payment by a party of the costs of another party includes the power to make an order for the payment of an amount to compensate the other party for any expenses, loss, inconvenience, or embarrassment resulting from the proceeding or the matter because of which the proceeding was brought.
(4) Without limiting anything else that may be considered in making an order for the payment by a party of the costs of another party where the matter that is the subject of the proceeding comes
23 Section 201 of the Health Practitioner Regulation National Law (Western Australia) (National Law) contained in the Schedule to the Health Practitioner Regulation National Law 2010 (WA).
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within the Tribunal’s review jurisdiction, the Tribunal is to have regard to —
(a) whether the party (in bringing or conducting the proceeding before the decision-maker in which the decision under review was made) genuinely attempted to enable and assist the decision-maker to make a decision on its merits;
(b) whether the party (being the decision-maker) genuinely attempted to make a decision on its merits.
(5) The rules may deal with the effect of certain offers to settle, and responses, if any, to the offer, on the making of an order for the payment by a party of the costs of another party.
43
Section 5 of the SAT Act provides that:
If there is any inconsistency between this Act and an enabling Act, the enabling Act prevails.
Effect of s 87(1) of the SAT Act to displace the usual order for costs
44
In Western Australian Planning Commission v Questdale Holdings Pty Ltd (Questdale). Murphy JA said of the effect of s 87(1) of the SAT Act:
Unlike in curial litigation, the ‘important principle commonly referred to as the “usual order as to costs”‘, under which the successful party is prima facie entitled to his or her costs, has no application given the presumptive position or starting point under s 87(1) of the SAT Act that each party is to bear its own costs.24
45
The principle known as the ‘usual order as to costs’ provides that a successful party should generally be compensated for the costs that party has incurred, unless there is conduct by the successful party in relation to the conduct of the proceedings which would justify a different outcome.25 The High Court has held that the ‘usual order for costs’ is not a legal rule that fetters the exercise of the discretion in a way not intended by the legislature, but is a principle or guideline that ensures the
24 Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32 [50], Martin CJ agreeing at [1].
25 Northern Territory v Sangare (2019) 265 CLR 164 at [25].
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consistent exercise of the discretion.
26 In Oshlack v Richmond River Council, the plurality of Gaudron and Gummow JJ said:
In the administration of the discretion conferred by these provisions upon courts of general jurisdiction, practices or guidelines have developed. Observations by Brennan J in Norbis v Norbis are in point. His Honour said:
“It is one thing to say that principles may be expressed to guide the exercise of a discretion; it is another thing to say that the principles may harden into legal rules which would confine the discretion more narrowly than the Parliament intended. The width of a statutory discretion is determined by the statute; it cannot be narrowed by a legal rule devised by the court to control its exercise”.
It is in that sense that there is to be understood the earlier statement in this Court as to the existence of “a general rule that a wholly successful defendant should receive his costs unless good reason is shown to the contrary”.27
Consideration of the issue in Western Australia
46
We are not aware of any case in Western Australia where the issue of whether s 87(1) of the SAT Act is inconsistent with the National Law provisions has been raised. To date, the Tribunal has proceeded on the basis that the principles that are to be applied to an award of costs under the National Law provisions are the same as those to be applied under s 87 of the SAT Act, because it has not been asked to do otherwise.28
47
In Panegyres v Medical Board of Australia, Vaughan JA said in relation to s 195 of the National Law, which is in identical terms to s 201,29 that:
Whether the power under s 195 of the National Law is different in any material way to the power under s 87(2) of the State Administrative Tribunal Act need not be considered at present. (Although, in that respect, s 195 of the National Law does not fall to be construed in a context where – because of s 87(1) of the State
26 Northern Territory v Sangare (2019) 265 CLR 164 at [24] and [25]; Oshlack v Richmond River Council (1998) 193 CLR 72 at [35] and [40] Gaudron and Gummow JJ and at [65] and [66] McHugh (in dissent, however not on the statement of principle).
27 Oshlack v Richmond River Council (1998) 193 CLR 72 at [35].
28 See for example Medical Board of Australia and Tan [2022] WASAT 57 (S) at [125] and Panegyres v Medical Board of Australia [2020] WASCA 58 at [320], Vaughan JA, both concerning s 195 of the National Law.
29 Section 195 of the National Law applies in relation to disciplinary proceedings and s 201 to review proceedings.
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Administrative Tribunal Act — the default position is that the parties bear their own costs in a proceeding of the Tribunal.)30
48
Whilst Vaughan JA’s comment in parenthesis in the quote above might suggest a view that the Tribunal, in considering whether to order costs under s 195 of the National Law, does not start for the position that each party bears their own costs, his Honour did not consider that issue.
Submission concerning the practice of the Tribunal
49
The statement relied on by the Board in Lee and Pharmacy Board of Australia,31 that there is a well-established practice in review proceedings in Western Australia that normally parties should bear their own costs, was made in the context of an application for costs under s 87 of the SAT Act. It does not assist in the determination of the issues before us.
Consideration of the issue in other States
50
The question of how costs are to be dealt with in proceedings under the National Law, including whether provisions similar to s 87(1) are inconsistent with the costs provisions under the National Law,32 has been considered in other States, with differing results. As both parties to these proceedings accepted, there is difficulty in applying authorities from other States given the differences in the applicable legislation.
51
The New South Wales Civil and Administrative Appeal Tribunal has applied the ‘usual order as to costs’ in proceedings under the National Law, following the decision of the New South Wales Court of Appeal in Ohn v Walton.33 However, in that State, the equivalent of s 87(1) of the SAT Act is expressly excluded.34 Accordingly, no issue of inconsistency arises.
52
It has been held in Queensland that s 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), which provides for a starting position that each party to a proceeding in that tribunal must bear their own costs, was ousted by s 201 of the National
30 Panegyres v Medical Board of Australia [2020] WASCA 58 at [320], Vaughan JA.
31 Lee and Pharmacy Board of Australia [2021] WASAT 132 (S) at [46] and [47].
32 It should be noted there are differences in the ‘National Law’ as enacted in the various jurisdictions, which are referred to when relevant. 33 Ohn v Walton (1995) 36 NSWLR 77; see also White v Medical Board of Australia [2024] NSWCATOD 80 at [101] and [102] and Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [46] – [48].
34 Health Practitioner Regulation National Law (2009) (NSW) Sch 5D cl. 13(4) excludes the operation of s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) which provides, in effect, that each party to proceedings in the tribunal is to pay their own costs in the absence of special circumstances.
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Law.
35 However, the decisions do not give detailed consideration to the reasons for reaching that conclusion. In any event, s 201 of the National Law has since been repealed in Queensland, with the result that only the costs provisions of the QCAT Act apply to proceedings under the National Law in that State.
53
In Kolta and Psychology Board of Australia (Review and Regulation) (Costs) (Kolta),36 which the Practitioner relied on, the Victorian Civil and Administrative Tribunal held that s 201 of the National Law prevailed over s 109 of the Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act). The effect was held to be that the discretion under s 201 was not constrained by the presumption in s 109(1) of the VCAT Act that each party bear their own costs.37 However, the Tribunal expressly refused to follow Ohn v Walton,38 and rejected the proposition that the principle that costs should generally be awarded to the successful party (that is: follow the event) applied.39
54
The Practitioner’s submissions also make reference to the decision of the Australian Capital Territory Civil and Administrative Tribunal in Howard v Psychology Board of Australia40 where the Tribunal held that there was no inconsistency between s 201 of the National Law and s 48 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act), which provided, in s 48(1), that the parties must bear their own costs unless the ACAT Act or another territory law otherwise provided or the ACAT otherwise ordered. However, the Tribunal said that principle that costs follow the event should be applied when exercising the discretion under s 201 of the National Law, although that finding was not ultimately necessary for the determination of the matter.41 In arriving at this conclusion, the Tribunal relied on the limited scope of the discretion under the ACAT Act, and said:
It might be argued that the principle that costs follow the event should not be applied, because it is contrary to the first part of s 48(1) of the ACAT Act. However, I do not think it would be correct to interpret section 48(1) as imposing on each costs power some sort of threshold to be ‘gotten over’ so that costs can be awarded. This is not what section
35 See Attudawage v Medical Board of Australia (No 4) [2011] QCAT 626 [2] and [3]; Zhang v Chinese Medicine Board of Australia [2015] QCAT 53 at [5], [6], [13] and [15].
36 Kolta and Psychology Board of Australia (Review and Regulation) (Costs) [2023] VCAT 108 at [13] and [14].
37 Kolta and Psychology Board of Australia (Review and Regulation) (Costs) [2023] VCAT 108 at [13] and [14].
38 Ohn v Walton (1995) 36 NSWLR 77.
39 Kolta and Psychology Board of Australia (Review and Regulation) (Costs) [2023] VCAT 108 at [36].
40 Howard v Psychology Board of Australia [2018] ACAT 127 at [22].
41 Howard v Psychology Board of Australia [2018] ACAT 127 at [22].
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48(1) says. While the underpinning policy seems to be that in the tribunal parties will bear their own costs, this is achieved by the legislation providing only limited circumstances in which the tribunal has a power to award costs. There is nothing in section 48, or the ACAT Act more generally, that suggests that when the tribunal is given a discretionary costs power it should be reluctant to use it.42
55
In our view, these decisions do not assist us in the determination of the interpretation of the legislation applicable in this jurisdiction given the significant differences in the applicable legislation.
Determination of the issue of whether s 87(1) is inconsistent with s 201
56
In our view, other than as referred to in [66] below, s 87(1) of the SAT Act is not inconsistent with s 201 of the National Law and operates to displace the principle that costs will generally be awarded to the successful party from the exercise by us of the discretion to order costs under s 201.
57
As has been said, s 201 of the National Law confers a wide discretion to award costs. Section 201 does not expressly specify any basis upon which the discretion is to be exercised other than that the Tribunal must consider the order ‘appropriate for the proceedings’. According to the Shorter Oxford English Dictionary, ‘appropriate’, in its ordinary English usage means ‘specially suitable (for, to); proper; fitting’.43
58
The discretion conferred by s 87(2) of the SAT Act is equally generally worded. Whilst s 87(2) does not qualify the power to order costs with the words ‘appropriate for the proceedings’, the Tribunal is required to exercise the power judicially, in circumstances where it is fair and reasonable to do so.44 It follows that the Tribunal may only make an order under s 87(2) if it considers that order is appropriate for the proceedings. Accordingly, leaving aside the effect of s 87(1) on the starting point of the exercise of the discretion, there is no inconsistency between s 201 of the National Law and s 87(2) of the SAT Act.
59
The proceedings referred to in s 201 of the National Law are proceedings commenced under s 199 of the National Law, being appeals against decisions made by various entities, including a National Board, of a type specified in s 199(1)(a) to (k), to the appropriate responsible
42 Howard v Psychology Board of Australia [2018] ACAT 127 at [17].
43 Shorter Oxford English Dictionary 2007 Online Edition.
44 Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32 at [49] and [51] Murphy JA, Martin CJ agreeing at [1].
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tribunal for that decision. In this case, the Board
‘s decision fell within s 199(1)(e), and the ‘appropriate responsible tribunal’ under s 199(2)(b) is specified to be the responsible tribunal for the participating jurisdiction in which the Practitioner’s principal place of business was located.45 There was no dispute in these proceedings (ultimately) that the ‘appropriate responsible tribunal’ was the responsible tribunal for Western Australia. Under s 19 of the Application Act, the State Administrative Tribunal is declared to be the responsible tribunal for Western Australia.
60
By s 36 of the Application Act, a reference in the National Law to an appeal to the Tribunal against a decision is a reference to a review of the decision as provided under the SAT Act Pt 3 Div 3.46 That division includes s 18, which provides:
(1) In exercising its review jurisdiction the Tribunal is to deal with a matter in accordance with this Act and the enabling Act.
(2) The enabling Act may modify the operation of this Act in relation to a matter that comes within the Tribunal’s review jurisdiction.47
61
By s 5 of the SAT Act, the National Law is to prevail to the extent of any inconsistency between the SAT Act and the National Law. Section 203 of the National Law is, essentially, to the same effect, providing that:
This Division applies despite any provision to the contrary of the Act that establishes the responsible tribunal but does not otherwise limit that Act.
62
Accordingly, in dealing with review proceedings under the National Law, the Tribunal must comply with both the provisions of the SAT Act and the National Law, except to the extent that the SAT Act provisions are inconsistent with the National Law provisions, in which case the National Law provisions prevail to the extent of the inconsistency.
63
It has been said that, where considering the interaction between two statutes enacted by a State, it must be assumed that the State would not
45 Section 195 of the National Law is in the same terms in relation to proceedings under s 193, being proceedings concerning the of allegations of professional misconduct to a responsible tribunal.
46 Section 11 of the Health Practitioner’s Regulation National Law (WA) Act 2010 (WA) (2010 Act) was in identical terms to s 36 of the Application Act.
47 Section 16 is in the same terms with respect to proceedings in the Tribunal’s original jurisdiction, which includes proceedings under s 193 of the National Law.
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wish to contradict itself and every attempt should be made to reconcile
the statutes.48
64
As has been said, s 87(1) of the SAT Act provides that:
Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal.
65
The words ‘otherwise specified’ refer to the possibility that the three things identified, the SAT Act, the enabling Act and an order of the Tribunal, may specify that a party not bear their own costs of a proceeding in the Tribunal: that is, each may specify that a party be paid their costs of such proceedings. Section 201 of the National Law does not specify that any party will be paid their costs of proceedings before the responsible tribunal. Rather, s 201 confers a discretion on the Tribunal to make an order to that effect, as does s 87(2) of the SAT Act. It is an order that a party be paid their costs, made in the exercise of that discretion, that may override the position that parties bear their own costs, not s 201 itself.
66
Section 87(1) of the SAT Act is inconsistent with s 201 of the National Law only to the extent that s 87(1) does not allow for the possibility that the presumptive position, that parties will bear their own costs, may be overcome by a costs order under s 201 as well as a costs order under the SAT Act. Section 201 must prevail over s 87(1) to the extent of that inconsistency; that is that an order under s 201 may overcome the starting, or presumptive, position that each party bear their own costs.
67
As has been said above, the effect of s 87(1) of the SAT Act has been said to be to displace the principle or guideline referred to as ‘the usual order for costs’ and replace it with a different ‘presumptive position or starting point’.49 However, we do not consider that has the consequence of rendering s 87(1) inconsistent with s 201 of the National Law so that the starting point does not apply to the exercise of the discretion by the Tribunal under s 201.
68
The provisions of the National Law were enacted in the context of the already existing provisions of the SAT Act, including s 87, which, in light of the provisions of s 203 of the National Law and s 5 and s 18 of the SAT Act, form part of the context in which s 201 of the National Law
48 Butler v Attorney-General (Vic) (1961) 106 CLR 268 at 276, Fullagar J.
49 Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32 at [50].
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is to be interpreted. In our view, when regarded in that context, it may
be inferred that the legislative intent was that the broad discretion under s 201 of the National Law would be exercised in the same way as the equally broad discretion under s 87(2) of the SAT Act, and that the starting point in s 87(1) would apply to the exercise of the discretion under s 201 of the National Law in proceedings where this Tribunal was the ‘responsible tribunal’.
Considerations for the exercise of the discretion under s 201
69
In light of the above, the discretion to award costs in this case is directed to the question of the extent to which it is fair and reasonable to order that the Practitioner should be reimbursed for his costs.50 The Practitioner bears the onus of satisfying the Tribunal that the discretion to award costs should be exercised in his favour. 51
70
In Medical Board of Australia and Tan (Tan),52 which concerned the exercise of discretion under s 195 of the National Law in disciplinary proceedings brought by the Board, and where it was accepted that the principles to be applied under s 195 were the same as those under s 87(2), it was said that:
When a regulatory body is not successful in a disciplinary proceeding, it is common for the Tribunal to refuse to make an order that the regulatory body pay the costs of the respondent. Quite apart from the no costs approach in s 87(1) of the SAT Act, the Tribunal is informed by the public policy consideration that the prospect of a costs order may dissuade or inhibit regulatory bodies from commencing proceedings that should be commenced and maintained in the public interest, despite the fact that success cannot be guaranteed. It is for that reason that the Tribunal’s general approach is that ‘unless it can be demonstrated that an application made by a vocational regulatory body lacked any reasonable basis or was not made in good faith, costs should not be awarded against [that body] simply because the application was not successful’.53
71
This passage suggests that the approach that costs will not generally be awarded against a regulatory board unless their conduct of the proceedings is such as to warrant that course being taken would apply even in the absence of s 87(1) of the SAT Act. However, given our conclusions above, we do not have to consider that further. In our view, the view expressed in Tan applies equally to the exercise of discretion under s 201 of the National Law. Accordingly, in our view, it is
50 Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32 at [51].
51 Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32 at [51].
52 Medical Board of Australia and Tan [2022] WASAT 57 (S).
53 Medical Board of Australia and Tan [2022] WASAT 57 (S) at [133].
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necessary in this case for the Practitioner to satisfy us that the Board has
acted unreasonably, or with a lack of good faith, before we would exercise our discretion to order the Board pay the Practitioner’s costs.
72
On the question of whether the Board has acted unreasonably, in our view, the following comments in Tan, made in the context of disciplinary proceedings are also relevant to review proceedings:
149 In making an assessment of the reasonableness of a regulatory body’s conduct must [sic] be mindful of the information available to the body on which it may make its assessment at various stages in the proceedings. It is not appropriate to employ hindsight reasoning, based simply on the fact that a regulatory body did not succeed. Litigation is unpredictable.
150 The risk of hindsight reasoning means that in assessing unreasonableness, the Tribunal should be cautious about rushing to a judgment that a regulatory body has acted unreasonably…54
73
In addition, the Practitioner accepted that s 87(4) of the SAT Act applies to our consideration of the exercise of the discretion to award costs under s 201. That section requires the Tribunal to take into account, in review proceedings, whether the decision maker has genuinely attempted to make a decision on the merits and whether the subject of the decision has genuinely attempted to assist the decision maker in doing so.55
Should the Tribunal exercise its discretion to order the Board pay costs?
74
The Reasons, which should be read with this decision, are the starting point for determining the Practitioner’s application for costs.
75
In summary:
(a) we were unable to draw the conclusion the Board asked us to draw, that the conditions it had imposed on the grant of general registration were either necessary or desirable to guard against the risk that the Practitioner may be unable to practice the profession competently and safely, or that he may be some risk to persons by reason of his practice, on the evidence of five open notifications concerning his professional practice (Notifications)
54 Medical Board of Australia and Tan [2022] WASAT 57 (S) at [149] – [150].
55 There is no suggestion in this case that the Practitioner did not genuinely attempt to assist the Board in reaching a decision.
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and the Assessors’ Report in which comments critical of the Practitioner’s practice and skills were made;56 and
(b) this conclusion was based on the following findings and conclusions:
(i) none of the Notifications had been substantiated against the Practitioner and the Board did not lead evidence concerning the substance of any of the Notifications;57
(ii) there was no suggestion that the concerns raised about the Practitioner’s conduct in the Notifications were serious enough to warrant immediate action if he had held general registration;58
(iii) the Assessors’ Report had been prepared after a day’s review of the Practitioner’s records, where it was the first step towards a hearing by a Performance Review Panel, at which the Practitioner would be given the opportunity to respond to the criticisms of his practice, as the Assessors were aware;59
(iv) the Assessors were not called to give evidence;60
(v) the Practitioner had, in his evidence, provided answers for the criticisms of his conduct and was largely unchallenged on that evidence. We found his explanations to be cogent, without making any final determination on the evidence;61
(vi) on analysis of the Assessors’ Report, in any event, the criticisms made of the Practitioner were, in fact, reasonably limited in scope;62
(vii) we did not accept that the Practitioner had deliberately changed his registration type or the location of his principal place of practice in order to avoid investigation, and accordingly, there was no basis for inferring from that
56 Reasons at [198], [199], [210] (see also [42(a)(i)] and [42(a)(ii)]).
57 Reasons at [201].
58 Reasons at [203].
59 Reasons at [204].
60 Reasons at [204].
61 Reasons at [205].
62 Reasons at [207].
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conduct that the Practitioner understood there was some merit in the Notifications;63 and
(viii) we did not accept that the Practitioner’s conduct after he obtained non-practising registration supported the Board’s concerns about his practice in any general way;64 and
(c) in addition, we found that the Reconsidered Conditions did not appear to be designed to ensure health services were provided safely (in accordance with guiding principle in s 3(3)(c) of the National Law), or that the Practitioner practiced in a competent or ethical manner (in accordance with the objective in s 3(2)(a) and (e)), or to minimise any perceived risk to patient safety. Rather, we found that the conditions appeared designed to ensure oversight of the Practitioner’s practice which might identify issues in his practice supporting the concerns raised by the Notifications and the Assessors’ Report, after the fact.65 In particular:
(i) the condition as to the approval of the place of practice was said to arise from the Board’s expressed concerns about the Practitioner’s timely provision of information about his practice to regulatory authorities, about which the evidence was limited and did not reflect on patient care;66
(ii) there was no evidence to support a finding that the Practitioner had performed surgery in a location where he did not have admission rights to a hospital, which would justify a condition that he be required to do so;67
(iii) the proposal for mentoring appeared to have little utility in circumstances where there has been no finding of error on the Practitioner’s part;68
(iv) for the same reason, there appeared to be little utility in conducting an audit with the express purpose being to ‘objectively assess whether the Practitioner has
63 Reasons at [208].
64 Reasons at [209].
65 Reasons at [211].
66 Reasons at [212].
67 Reasons at [212].
68 Reasons at [212].
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implemented learnings from the regulatory process’ or to assure the Board that ‘he is actively addressing the identified concerns’ or mitigate any risk;69 and
(v) there was no persuasive evidence before us that the Practitioner had any relevant lack of insight, or that his medical record keeping was deficient.70
76
The fact that we have come to a decision, upon review, which differed from the Board’s decision, on its own, would not support an award of costs.71 That is the case even where, as here, the Board’s conclusion on the need for conditions was initially based, in part, on evidence that it did not rely on at the hearing. As was said in Tan,72 albeit in a different context, the Board as a model litigant is required to reassess the available evidence as a matter proceeds.73
77
Neither do we consider that the fact that the Board took considerable time to make a decision and, ultimately, did not make a decision before the proceedings were commenced, warrants a costs order. There is nothing in the evidence before us to support a finding that the Board was not genuinely attempting to reach a decision before the deemed refusal of the Practitioner’s application for registration. Indeed, the Board’s email of 9 March 2023, explaining the reasons for seeking an extension of time, supports a finding that it was.
78
With respect to the complaint that the Board’s solicitors raised procedural issues unnecessarily, adding to the costs of the proceedings, whether a party has conducted itself in a manner that has impaired the attainment of the Tribunal’s legislative objectives is a relevant consideration.74 Section 9 of the SAT Act provides that the main objectives of the Tribunal are to resolve proceedings fairly and in accordance with their substantial merits, with as little formality and technicality as possible, and in a way that minimises the parties costs.
79
The Board raised the issue of whether there had been a deemed refusal to grant the Practitioner registration in conjunction with the proposal to resolve that issue by seeking an order, by consent, that the matter be referred back to the Board for reconsideration of the
69 Reasons at [212].
70 Reasons at [212].
71 Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32 at [55].
72 Medical Board of Australia and Tan [2022] WASAT 57 (S).
73 Medical Board of Australia and Tan [2022] WASAT 57 (S) at [147].
74 Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32 at [54].
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decision. The view that there was a concluded agreement to extend the
time within which the Board was to make a decision is perhaps difficult to support, given the failure of the Board to specify the extension that it was seeking the Practitioner’s agreement to, in its email of 9 March 2023, and the Practitioner’s solicitor’s email, of 13 March 2023, seeking an urgent response to the Practitioner’s proposal that the extension be to 14 April 2023. However, there is no basis to conclude that either Ahpra or the Board’s representatives did not genuinely believe that the extension of time had been agreed. This is particularly given the context was to seek the Practitioner’s agreement to refer the matter back to the Board for reconsideration. In addition, the matter was raised at an early stage of the proceedings and was not pursued. In our view, the Board cannot be said to have unnecessarily increased the formality and technicality of the proceedings by raising this issue, nor can raising it be said to have unreasonably increased the Practitioner’s costs.
80
The Board’s solicitors did not raise the issue of whether the Tribunal had jurisdiction to determine the matter until the Practitioner had refused to agree to the matter being referred back to the Board. It was not pursued after that agreement was reached. However, in our view, that evidence alone is not sufficient to support an inference that the issue was not genuinely raised. It appears that, at the time the issue was raised, there was some evidence the Practitioner continued to live in New South Wales, which provided a factual basis for raising the issue at that time. Again, in our view, the Board cannot be said to have unnecessarily increased the formality and technicality of the proceedings by raising this issue, nor can it be said to have unreasonably increased the Practitioner’s costs.
81
There was a considerable period of time between the date the Practitioner’s solicitors responded in detail, on 29 January 2023, to the Board’s proposal to impose conditions, and 23 September 2023, when the Board advised the Practitioner of its Reconsidered Conditions. The delay was unfortunate, to say the least, given that the Practitioner was unable to practice until a decision had been reached, unless he decided to accept a practice certificate with the Original Conditions. Some of the delay is explained, however, by the commencement of the proceedings in March 2023, at which point, as the Board submits, it did not have power to make a decision without the Practitioner’s agreement to refer the matter back to the Board.
82
There is no evidence from which we could infer that the Board was not genuinely attempting to reach a decision on the merits at that stage.
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That it did reconsider the material is evidenced, as the Board submits, by
the fact that it did modify, in the Practitioner’s favour, the conditions it imposed on his registration from those that were originally proposed, albeit we do not consider the extent of that modification was as great as the Board submits.
83
In our view, at that stage, a careful and critical consideration of the principal basis for the Board’s decision to impose conditions, being the Assessors’ Report, in light of the Practitioner’s comments, should have raised concerns about the basis of the opinions expressed in that report and, therefore, the Board’s reliance on those opinions, as well as concerns about whether the conditions ultimately imposed were in fact justified by it. However, as noted in Tan,75 we must exercise caution in viewing the Board’s conduct with the benefit of hindsight. We are not satisfied that, at that stage, it was unreasonable for the Board to impose the conditions it did, or to proceed to defend the application.
84
As the Practitioner appears to concede, in our view, it was reasonable for the Board not to accept the First Offer, given the Practitioner did not propose to agree to any conditions on his practice, but rather to make ‘promises’ which were considered unenforceable.
85
In our view, however, it was unreasonable for the Board to proceed to defend the application after the time for acceptance of the Second Offer had expired, that is when the Board refused the offer on 5 February 2024, and we are satisfied on the balance of probabilities that an order for costs should be made in relation to the Practitioner’s costs from that date.
86
On our calculation, the Second Offer was originally open for a period of 13 days. However, given the extension of time to 9 February 2024, the Second Offer was open for more than the minimum period of 14 days required under r 41(2) of the State Administrative Tribunal Rules 2004 (WA).
87
With respect to the Practitioner’s submission that the terms of the Second Offer were ‘more favourable’ to the Board than the outcome of the review proceedings, we do not accept that categorisation or that it is relevant. In exercising its functions under the National Law, the Board has obligations to have regard to the guiding principles of the National Law, including the protection of the public. That role cannot
75 Medical Board of Australia and Tan [2022] WASAT 57 (S).
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be equated with those of the parties to civil litigation, who have a
personal stake in the outcome of commercial disputes.
88
Our finding that it was unreasonable for the Board to proceed to defend the application after refusing the Second Offer is based on the following factors, in combination:
(a) our view that a critical analysis of the Assessors’ Report must have exposed the risk of relying on the opinions expressed in that report;
(b) that, even accepting the opinions in the Assessors’ Report were valid, a critical analysis of it must have given rise to concern that it did not provide support for the conditions the Board had imposed;
(c) the principle concern raised by the Notifications about the Practitioner’s surgical practice, which was also referred to in the Assessors’ Report, would be met by the undertaking offered by the Practitioner, that he would not practice any surgery that would require sedation or which would be required to be performed at a hospital or registered facility until the completion of the investigation into the disciplinary matters, which undertaking would include provision to allow the Board to monitor compliance. In other words, the terms of the offer must have addressed any concerns about public safety that had been raised by the Notifications; and
(d) the final hearing proceeded just over seven weeks after the Second Offer, where the Board did not adduce any evidence of the Notifications, other than the fact they had been made, the terms of each complaint, and the fact that investigations had been undertaken. Nor did it adduce evidence from the Assessors in support of the opinions expressed, or the conditions the Board sought to impose, despite the deficiencies the Practitioner had identified in the Assessors’ Report, and that were apparent on a critical consideration of that report.
89
In our view, the fact that the letter containing the Second Offer said that the Practitioner considered that the Board’s position was unlawful offers no justification for not accepting that offer. The Practitioner did not seek any admission from the Board that its conduct was unlawful as the basis of the proposed settlement.
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90
To the extent that the Board submits that there was no evidence filed by either party at the time the Second Offer was made, the Tribunal’s records indicate that the Practitioner’s affidavit was filed on 1 February 2024, before the Board rejected the Second Offer, in circumstances where the Practitioner had indicated a willingness to keep the Second Offer open if the Board needed extra time. In any event, the critical question was whether the evidence on which the Board relied supported the conditions that they sought to impose, and whether the conditions the Practitioner proposed met the concerns about public safety that evidence raised. In our view, at that stage, if not before, it was incumbent upon the Board as a model litigant to critically analyse the evidence it relied on, which ought to have revealed the deficiencies that were identified in the Reasons. Our view is not changed by the fact that there were issues, namely those referred to in [75(b)(vii)] and [75(b)(viii)] above, which were only resolved after hearing the Practitioner’s evidence, given those issues did not raise concerns about public safety.
91
For the sake of completeness, we do not consider that costs relating to the response to the Board’s original decision are costs of the ‘proceedings’, which could be ordered under s 201 of the National Law. Such costs may be ordered under s 87(3) of the SAT Act, being an expense resulting from the matter because of which the proceedings were brought. However, for the reasons we have given, we do not consider it is appropriate to award the Practitioner his costs before 6 February 2024.
92
We also do not accept the submission that the Board imposed conditions on the basis that they were ‘not arduous’. This is not what was said in either of the Board’s decisions, but was a remark made in the Board’s counsel’s submissions.
Should the Tribunal order indemnity costs?
93
As the Practitioner concedes, awarding indemnity costs in vocational proceedings is a rare event. The Practitioner relies on the circumstances set out in Kolta.76 However, in Kolte, whilst the Tribunal said that there was support for Dr Kolta’s claim for indemnity costs, being the Board’s failure to act as a model litigant, to act reasonably in its consideration of Dr Kolta’s applications, and to act consistently with prior positions taken before the Tribunal, it did not give any reasons for its view that indemnity costs should be awarded. In addition, ultimately the only costs that the Tribunal appears to have ordered be paid on an
76 Kolta and Psychology Board of Australia (Review and Regulation) (Costs) [2023] VCAT 108.
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indemnity basis were the costs of the application for costs.
77 However, on the facts of that case, in our view, the board’s conduct provided significantly more justification to award indemnity costs than the present case.
94
We have not accepted the Practitioner’s submission that the Board took an unreasonable position from the outset, or that it conducted itself improperly in the procedural issues that it raised. We do not consider that the Board’s apparent failure to appreciate the deficiencies on the evidence it relied on warranted an award of costs until 5 February 2024, when that evidence had to be viewed in light of the Second Offer. We consider that justifies the award of costs from that point. However, we are not satisfied that an award of indemnity costs is justified.
Conclusion
95
We consider that it is appropriate to make a lump sum order for the Practitioner’s costs incurred in these proceedings from and including 5 February 2024.
96
In the circumstances, we will give the parties leave to file submissions of no more than two pages on the question of the quantum of that lump sum, as they have requested, after which the quantum will be determined on the papers.
97
Accordingly, we will make orders in the terms set out below.
Orders
The Tribunal orders:

1. The Respondent pay the Applicant’s costs of the proceedings, from and including 5 February 2024 in an amount to be fixed;
2. By 18 April 2025 the Applicant file and serve submissions on the appropriate quantum of the Applicant’s costs from 5 February 2024;
3. By 2 May 2025 the Respondent file and serve submissions in reply to the Applicant’s submissions filed in compliance with Order 2; and
   77 Kolta and Psychology Board of Australia (Review and Regulation) (Costs) [2023] VCAT 108 at [80(b)].
   [2024] WASAT 67 (S)
   Page 33
4. The quantum of the Applicant’s costs be thereafter fixed on the papers.
   I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
   FB
   Associate
   4 APRIL 2025