ACT CIVIL & ADMINISTRATIVE TRIBUNAL

HOWARD v PSYCHOLOGY BOARD OF AUSTRALIA (Occupational Discipline) [2018] ACAT 127

OR 15/2017

Catchwords: OCCUPATIONAL REGULATION — National Health Law — costs — self represented litigant — what principles apply to award of costs under National Health Law — meaning of ‘costs’

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 27, 48, 48A, 49Health Practitioner Regulation National Law (ACT) ss 198, 201Health Practitioner Regulation National Law (ACT) Act 2010 ss 6, 8Health Practitioner Regulation National Law (NSW) s 175B, Sch 5DLegal Profession Act 2006 s 433Legislation Act 2001 s 139

Cases cited: Barbary v CBL Insurance (Building and Property) [2016] VCAT 1218Cachia v Hanes [1994] HCA 14George and Nursing and Midwifery Board of Australia [2013] WASAT 16HCC v Kreft (No 3) [2013] NSWPST 1Health Care Complaints Commission v Philipiah [2013] NSWCA 342In The Matter of Ruling Tribunal Section 31 of the Unit Titles Management Act 2011 [2017] ACAT 56Latoudis v Casey [1990] HCA 59London Scottish Benefit Society v Chorley, Crawford and Chester (1884) 13 QBD 872Mainore Pty Ltd & ACT Planning And Land Authority & CIC Australia Pty Ltd [2011] ACAT 24Motor Vehicle Industry Board and Dawson [2006] WASAT 8Murphy v Legal Services Commissioner (No 2) [2013] QSC 253Nursing & Midwifery Board of Australia and Roe [2018] WASAT 92Oshlack v Richmond River Council [1998] HCA 11The Owners – Units Plan 840 v Richardson [2015] ACAT 77Pharmire Pty Ltd and The Pharmacy Registration Board of Western Australia [2018] WASAT 88

Profitability Consulting Pty Ltd v Thorpe [2018] NSWCATAP 41Re Jack Lee Bloomfield and Sub-Collector of Customs, Australian Capital Territory [1981] AATA 124Re Ronald G Sarina and Secretary of the Department of Social Security [1988] AATA 91Williams v Lewer (1974) 2 NSWLR 91

List of Texts/Papers cited: Australian Law Reform Commission, Costs Shifting – Who

pays for litigation, Report No 95 (1995)

Tribunal: Presidential Member MT Daniel

Date of Orders: 13 December 2018Date of Reasons for Decision: 13 December 2018

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AUSTRALIAN CAPITAL TERRITORY )CIVIL & ADMINISTRATIVE TRIBUNAL ) OR 15 of 2018

BETWEEN:

KERRY ANN HOWARDApplicant

AND:

PSYCHOLOGY BOARD OF AUSTRALIARespondent

TRIBUNAL: Presidential Member MT Daniel

DATE: 13 December 2018

ORDERThe Tribunal orders that:

1. The respondent is to pay to the applicant the sum of $338.

………………………………..Presidential Member MT Daniel

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REASONS FOR DECISION

1. This is a decision about costs incurred in proceedings under the Health

Practitioner Regulation National Law (ACT) (National Law).

2. The applicant had applied to the Tribunal on 4 October 2017 to review a decision

of the Psychology Board (Board) affecting her registration. Before that matter

had progressed very far, the Board reversed its decision. For the avoidance of

doubt, on 18 December 2017 the Tribunal made orders that the decision under

review be reversed.

3. The applicant then indicated she wished to seek her costs of the proceedings.

She subsequently filed an application for interim or other orders outlining the

total costs of $7,688 comprised as follows:

(a) $4,200 (for three attendances at the Tribunal);

(b) $1,400 (one day of preparation for hearings and preliminary conference);

(c) $1,750 (being lost income from 10 appointments with clients which were

necessary under her ethical obligations but unable to be billed due to the

decision affecting her registration);

(d) $338 (being the filing fee for the application for review).

4. The applicant explained in her application that on each day she had attended the

Tribunal (for stay application, directions hearing and preliminary conference)

she had set the entire day aside. Accordingly she had forgone the income per

day of $1,400, being eight clients per day at $175 per client.

5. The Board conceded that it should reimburse the applicant her filing fee, but

otherwise opposed the costs application.

6. The costs application was heard on 26 February 2018 and the decision was

reserved. The Tribunal directed the parties to file written submissions

subsequent to the hearing.

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Issues

7. The application for costs raises two issues:

(a) What principles apply when deciding an application for costs under

section 201 of the National Law?

(b) What does the word ‘costs’ in section 201 of the National Law include?

Legislative framework

8. Section 6 of the Health Practitioner Regulation National Law (ACT) Act 2010

(National Law Act) applies the Queensland Health Practitioner Regulation

National Law, in a slightly amended form, as a law of the ACT. As applied in

the ACT it is referred to as the Health Practitioner Regulation National Law

(ACT). Section 8 of the National Law Act declares the tribunal to be the

responsible tribunal for the ACT.

9. The tribunal is established under the ACT Civil and Administrative Tribunal

Act 2008 (ACAT Act). The ACAT Act provides a general procedural

framework for the hearing and determination of matters, including making

provision for costs of proceedings.

10. The National Law contains limited procedural provisions including, for review

proceedings, a costs provision (section 201). Where the National Law conflicts

with the ACAT Act, it is the National Law that prevails.1

11. Relevantly for these proceedings, section 48 of the ACAT Act provides:

48 Costs of proceedings(1) The parties to an application must bear their own costs unless this

Act or another territory law otherwise provides or the tribunal otherwise orders.

(2) However—(a) if the tribunal decides an application in favour of the applicant,

the tribunal may order the other party to pay the applicant––(i) the filing fee for the application; and(ii) any other fee incurred by the applicant that the tribunal

considers necessary for the application; orExamples––subpar (ii)

• a fee for a business name or company search• a filing fee for a subpoena

1 National Law sections 198 and 203; ACAT Act section 27

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• hearing feesNote An example is part of the Act, is not exhaustive and

may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(b) if the tribunal considers that a party to an application caused unreasonable delay or obstruction before or while the tribunal was dealing with the application—the tribunal may order the party to pay the reasonable costs of the other party arising from the delay or obstruction; or

(c) subject to section 49, if a party to the application contravenes an order of the tribunal—the tribunal may order the party to pay the costs or part of the costs of the application to the other party; or

(d) if the application is an application for review of a decision under the Heritage Act 2004, the Planning and Development Act 2007 or the Tree Protection Act 2005, and the tribunal makes an order under section 32 (2) (Dismissing or striking out applications)—the tribunal may order the applicant to pay the reasonable costs of the other party arising from the application.

Note A legal expense relating to a proceeding in the tribunal may be recoverable as a debt under the Unit Titles (Management) Act 2011, s 31.

(3) For subsection (2) (d), reasonable costs of the other party arising from the application include reasonable legal costs but do not include holding costs.

Examples—holding costs• interest and lender imposed charges associated with a

loan • costs of engaging workers and subcontractors and hiring

equipment for a development

12. Section 48 is curiously drafted.2 It commences with a statement of general

principle, that parties will each bear their own costs, unless otherwise provided

by legislation or tribunal order. It then sets out in section 48(2) four

circumstances in which the tribunal has the power to award costs. The tribunal

may award costs in other circumstances — provided that it has the power to do

so. That power may be sourced from elsewhere in the ACAT Act,3 or from other

legislation.4

2 Mainore Pty Ltd & Act Planning And Land Authority & CIC Australia Pty Ltd [2011] ACAT 24 [31]-[37]

3 See for example ACAT Act section 48A4 See for example Legal Profession Act 2006 section 433

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13. In this case, in relation to proceedings in a responsible tribunal for review5 of a

decision, section 201 of the National Law provides:

201 Costs

The responsible tribunal may make any order about costs it considers appropriate for the proceedings.

14. There is no conflict or inconsistency between section 48 of the ACAT Act and

section 201 of the National Law. Section 201 of the National Law simply gives

the tribunal an apparently unfettered costs power, exercisable in relation to

proceedings for review brought pursuant to the National Law.

What principles apply to exercise of the costs power in the National Law?

15. Unlike other costs provisions available to the tribunal,6 there is no guidance in the

National Law as to how to exercise the power provided by section 201.

16. Counsel for the respondent submitted that the fundamental principle that should

apply to the exercise of power under section 201 was that costs follow the

event.7

17. 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 section 48(1) of the ACAT

Act.8 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 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.

5 Referred to as an ‘appeal’ in the National Law6 See for example ACAT Act section 49 which explains how the Tribunal

is to exercise the power provided by section 48(2)(c); or section 433 of the Legal Profession Act 2006

7 This principle is sometimes expressed in the relevant statute, or in other cases is adopted by the Court or Tribunal to guide exercise of a costs discretion

8 This argument is frequently made in the Tribunal whenever costs are sought

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18. Because the National Law is part of a scheme which is intended to be uniform, it

is helpful to consider the approach taken interstate. In doing so, though, it is

important to keep in mind the jurisdictional differences in application of the

National Law and laws establishing the responsible tribunals. Counsel for the

Board, at the Tribunal’s request, provided a comprehensive summary of the

application of the costs provisions of the National Law in each jurisdiction.

Counsel submitted “[i]t is fair to say that under the National Law, as adopted by

the various States and Territories, there is no national approach to the issue of

costs.”9 This is partly explained by the fact that Queensland and Tasmania have

dispensed with section 201 and applied unique costs provisions. The remaining

jurisdictions apply section 201, or a similarly worded section, but in the context

of the legislation establishing their responsible tribunal.

19. For example, in New South Wales, the Health Practitioner Regulation National

Law (NSW) contains section 175B which is identical to section 201. This is

bolstered by clause 13 of Schedule 5D to the National Law (NSW).10 Counsel

submitted that the practice in NSW is that the relevant tribunals apply the

principle that costs follow the event. There may be disentitling conduct by

reason of which costs do not follow the event.11

20. The Northern Territory, South Australia, Western Australia and Victoria have

each applied the National Law containing section 201, and a consideration of

reported cases indicates some of these jurisdictions now adopt the principle that

costs follow the event, while others come to a similar outcome but through an

analysis of their own tribunal’s costs power rather than the power provided by

the National Law.12

9 Respondent’s submissions 16 March 2018 [25]10 Clause 13 is identically worded to the costs provision under the prior

NSW legislation, with the unsurprising consequence that NSW continues to take the same approach to costs as prior to the National Law (NSW)

11 Oshlack v Richmond River Council [1998] HCA 11 followed in HCC v Kreft (No 3) NSWPT 1

12 See for example George and Nursing and Midwifery Board of Australia [2013] WASAT 16 where a ‘starting point’ of parties bearing their own costs was acknowledged, as were circumstances of the case justifying moving away from that position: [31]-[32]. More recent WA cases continue to consider the question in relation to the costs power under the State Administrative Tribunal Act 2004 (WA): Pharmire Pty

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21. The principle that costs follow the event, or the ‘costs indemnity rule’ evolved in

civil jurisdictions. It is questionable whether it should be applied as a matter of

course in proceedings which are in the nature of review of an administrative

decision. In administrative review proceedings, the approach generally taken is

that parties bear their own costs. The policy reasons for a different approach to

costs in administrative review proceedings are well known: some of those

reasons may not apply to proceedings under the National Law.13 It might also be

considered desirable, in the case of a national scheme, that matters with direct

financial consequences to the parties be addressed in a consistent manner across

jurisdictions. In the end, balancing these policy considerations is a matter for

government decision, to be implemented by way of the legislation.14

22. In the case of the National Law, the decision has been made to provide a

discretionary costs power for both disciplinary and review proceedings, with no

express constraints on exercise.15 The way in which the national provision is

interpreted is known. Unlike Queensland and Tasmania, the ACT has taken no

steps to depart from the national provision. Therefore, if one is to choose

between starting principles, I am satisfied that the principle that costs follow the

event should be applied when exercising the costs discretion under section 201

of the National Law. It would follow that established qualifications to that

principle are also applicable.

23. In applying the principle, it is helpful to consider  Health Care Complaints

Commission v Philipiah [2013] NSWCA 342 in which Emmett JA (agreed by

Meagher JA and Beech Jones J) stated in relation to the NSW provisions:

As a general rule, costs of proceedings before the Tribunal should follow the event and mere impecuniosity is not a justifiable reason for departing from that rule. However, there are factors that might militate against the recovery by the Commission of all of its costs in particular proceedings. For example, one factor might be that the Commission failed to obtain findings of professional misconduct alleged, even though it obtained

Ltd and The Pharmacy Registration Board of Western Australia [2018] WASAT 88, Nursing & Midwifery Board of Australia and Roe [2018] WASAT 92

13 See Australian Law Reform Commission, Costs Shifting – Who pays for litigation, Report No 95 (1995) [5.7]–[5.8] and [5.12]

14 Cachia v Hanes [1994] HCA 14 [21]15 National Law sections 195 and 201

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findings of unsatisfactory professional conduct. Another factor might be that the Commission failed to establish all of the particulars of professional misconduct alleged. Where discrete elements of the conduct complained of are not established, that may be relevant. A third factor might be oppressive conduct by the Commission in the way in which it prosecuted the proceedings before the Tribunal, such as taking procedural steps that gave rise to unnecessary expense in preparing for the hearing (see Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48]-[52]). It has not been suggested by the Doctor that any of those factors applied.

As the Tribunal observed in its reasons, the question of costs is discretionary. However, the discretion is a judicial one and must be exercised according to proper fixed principles and rules of reason and justice, not according to private opinion. While it is not easy to state the precise principles that are to guide a court in exercising the discretion over costs, the discretion is only to be exercised where there are materials upon which to exercise it (Williams v Lewer (1974) 2 NSWLR 91 at 95).

It is important when exercising the discretion to bear in mind that costs are intended to compensate a successful party. Costs are not intended to penalise an unsuccessful party. It is not an appropriate basis for the exercise of the discretion that an order for costs may cause hardship to the party against whom the order is made.16

24. In terms of other factors relevant to the exercise of discretion, it was submitted for

the Board that the Tribunal should take into account in deciding any costs

application against the Board that:

(a) it is fully reliant upon fees paid by health practitioners; and

(b) the Board’s reason for its actions was protection of the public in

accordance with the objectives set out in the National Law.17

25. More relevant for this costs application, in my view, are those objectives of the

National Law which refer to the scheme operating in a way which is

accountable and fair. It is difficult to see how it is fair in an individual case, or

how a Board can be held accountable,18 if a Board is able to avoid responsibility

16 Health Care Complaints Commissioner v Philipiah [2013] NSWCA 342 [42]-[44]

17 Counsel advanced no authorities for this submission. I note this argument was recently given short shrift in Pharmire Pty Ltd and The Pharmacy Registration Board of Western Australia [2018] WASAT 88; but is an argument of long standing as acknowledged in Motor Vehicle Industry Board and Dawson [2006] WASAT 8

18 The applicant submitted that the Board “should be held responsible for their conduct and decisions” — Applicant’s submissions in relation to costs 21 February 2018 page 6 [6k]

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for paying costs of the practitioner merely because of its overarching protective

role, or the fact it is not publically funded. I would give little weight to those

factors in the circumstances of this case.

26. The applicant in her submissions said that the Board’s decision was affected by

potential bias and erroneous facts, and was without merit. The applicant

submitted that she had been involved in a two year investigatory process, at

significant personal cost, only to be forced to institute proceedings in the

tribunal to obtain the correct outcome. The applicant was concerned that the

Board’s swift action to reverse its decision once proceedings were on foot

removed the opportunity for public scrutiny of the Board’s investigatory and

decision-making processes. The applicant queried whether the Board had

behaved as a model litigant in this respect.19

27. Matters such as those raised by the applicant, if established, may be relevant to the

exercise of discretion under section 201.20 However it is not necessary in this

case to determine whether those assertions are correct, because of the

conclusions I have reached below.

What does the word ‘costs’ in the National Health Law include?

28. Counsel for the Board submitted that another established principle which should

be applied when deciding the costs application was the ‘rule’ that litigants in

person are not entitled to be compensated for their own time spent preparing for

or attending the hearing.21

19 The ACAT Act does not have the equivalent of section 26 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), which expressly provides a decision cannot be altered except by the Tribunal. Prior to the insertion of section 26 in the AAT Act, a number of cases found that an original decision-maker could not tamper with a decision once it had become the subject of application to the AAT: Re Ronald G Sarina and Secretary To the Department of Social Security [1988] AATA 91 [6]; Re Jack Lee Bloomfield and Sub-Collector of Customs, Australian Capital Territory [1981] AATA 124 [11]. I doubt these authorities apply in this case given the powers and obligations of a Board under the National Law

20 Remembering of course, that costs orders are not intended to be punitive: Latoudis v Casey [1990] HCA 59 [13] per Mason CJ

21 London Scottish Benefit Society v Chorley, Crawford and Chester (1884) 13 QBD 872; Murphy v Legal Services Commissioner (No 2) [2013] QSC 253; Cachia v Hanes [1994] HCA 14

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29. If this proposition is to be characterised as a rule, it is a rule the application of

which depends upon interpretation of the costs provision. The High Court’s

decision in Cachia v Hanes establishes that what is recoverable as ‘costs’

depends upon interpretation of the word in its statutory context.22

30. I turn then to consider what the word ‘costs’ means where appearing in

section 201 of the National Law.

31. There is no definition provided by the National Law.

32. It was submitted on behalf of the Board that self-represented litigants are not

entitled to ‘costs’ for their time lost because the term ‘costs’ refers to

professional legal costs and disbursements incurred and not otherwise. Counsel

did not point to any basis in the legislation or extrinsic material for adopting this

‘term of art’ interpretation.

33. In The Owners – Unit Plan 840 v Richardson I concluded that the words ‘costs’,

where appearing in section 48 of the ACAT Act, was not limited to legal

professional costs and disbursements but should be interpreted according to its

ordinary English meaning to cover out of pocket expenses necessarily incurred

by a self-represented litigant for the proceedings.23 A similar approach was

taken by the Ruling Tribunal.24 Similarly, I see no basis in the National Law for

the word ‘costs’ to be interpreted as being limited to legal professional costs and

disbursements, given the proceedings are to be conducted in a Tribunal in which

self-representation is the norm rather than the exception. To adopt the narrower

term is to put a gloss on the word for which there is no basis in the statute,

broader legislative context or explanatory material.

34. Counsel submitted that I should not take an expansive approach to the word

‘costs’, and referred to recent VCAT25 and NCAT26 decisions in which a more

limited interpretation of the word in each tribunal’s legislation has been

22 Cachia v Hanes [1994] HCA 1423 The Owners – Unit Plan 840 v Richardson [2015] ACAT 77 [85]–[93]24 In The Matter of Ruling Tribunal Section 31 of the Unit Titles

(Management) Act 2011 [2017] ACAT 56 [89]25 Barbary v CBL Insurance (Building and Property) [2016] VCAT 121826 Profitability Consulting Pty Ltd v Thorpe [2018] NSWCATAP 41 [16]

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adopted. I note that those cases to which Counsel referred rely upon that

jurisdiction’s surrounding provisions as a statutory context to support a

narrower view. The ACAT lacks such a statutory context.

35. Counsel submitted that the amounts claimed by the applicant, with the exception

of the filing fee, were in form and substance a claim for damages rather than

reimbursement of amounts that have been paid. Counsel submitted that it is not

open to the Tribunal to award such amounts as ‘costs’ under section 201 of the

National Law. I agree with Counsel’s analysis of the amounts claimed as being

more in the nature of compensation for losses suffered than expenses incurred.

36. It is often said that an order for costs indemnifies the party obtaining the order for

the amounts actually paid or required to be paid to conduct the litigation. It does

not compensate the party for the losses he or she has suffered as a consequence

of the litigation. This interpretation has been restated numerous times,

invariably coming back to the majority decision in Cachia v Hanes:27

11. … It has not been doubted since 1278, when the Statute of Gloucester ((4) 6 Edw.I c.1.) introduced the notion of costs to the common law, that costs are awarded by way of indemnity (or, more accurately, partial indemnity) for professional legal costs actually incurred in the conduct of litigation. They were never intended to be comprehensive compensation for any loss suffered by a litigant. As Coke observed of the Statute of Gloucester, the costs which might be awarded to a litigant extended to the legal costs of the suit, “but not to the costs and expenses of his travel and losse of time” …

18. … as we have said, the accepted basis for an award of costs is that they are by way of indemnity. They are intended to reimburse a litigant for costs actually incurred; they are not intended to compensate for some other disadvantage or inconvenience suffered by the litigant.

19. If costs were to be awarded otherwise than by way of indemnity, there would be no logical reason for denying compensation to a litigant who was represented. That would in some cases dramatically increase the costs awarded to a successful litigant. In corporate litigation of complexity, for example, a litigant may expend considerable time and effort in preparing its case.

20. Whilst the restricted basis upon which party and party costs are awarded may be debated as a matter of policy, it is to be borne in mind that party and party costs have never been regarded as a total indemnity to a successful litigant for costs incurred, let alone total recompense for work done and time lost. Putting to one side the question posed by the

27 Cachia v Hanes [1994] HCA 14

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relatively rare exception of a solicitor acting in person, there is no inequality involved: all litigants are treated in the same manner. And if only litigants in person were recompensed for lost time and trouble, there would be real inequality between litigants in person and litigants who were represented, many of whom would have suffered considerable loss of time and trouble in addition to incurring professional costs. The partial indemnity which the law allows represents a compromise between the absence of any provision for costs (which prevails as a matter of policy in some jurisdictions) and full recompense. In these days of burgeoning costs, the risk of which is a real disincentive to litigation, the proper compromise is a matter of both difficulty and concern.

21. That choice has been made in New South Wales at least in the rules which govern the taxation of costs - rules which are in accordance with established law. The Rule Committee may or may not be able to use its statutory powers to change the basis upon which costs are awarded so that they become, not costs in the accepted sense of the word, but compensation of a more comprehensive kind. We express no view upon that.

37. The question to be asked, then, is whether the word ‘costs’ as appearing in

section 201 of the National Law has an extended meaning that includes

compensation for losses suffered — compensation ‘of a more comprehensive

kind’. This is what the applicant seeks.

38. Colloquially, a person may say that the proceedings ‘cost’ them a day at work,

which can be quantified as a day of lost wages or income, as the applicant in

this case has done. This is not the primary meaning of the word ‘cost’,

according to the Oxford or Macquarie Dictionaries, but it is a less common

meaning:

Cost1. a. The spending or outlay of money; expenditure; expense;

(now only) expenditure or expense incurred to attain a particular goal.b. An amount that must be or has been paid or spent in order to acquire, produce, maintain, or accomplish something.c. Law. In plural. The expenses of litigation, prosecution, or other legal transactions; esp. (in a legal action) those allowed in certain cases in favour of the winning party and against the losing party.d. In plural. The expenses or charges, considered collectively, involved in the purchase, production, maintenance, etc., of something; esp.  (in  later use) such expenses incurred by a business.e. The price at which goods are bought by a dealer or retailer (as opposed to a customer); = cost price n. at Compounds 2a. Hence

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at cost: at cost price; without profit to the seller. Cf. prime cost n. at prime adj. and adv. Special uses.

2. Expenditure of time, labour, etc.; (now chiefly) the effort, loss, or inconvenience involved in doing something. Formerly also in plural with same sense (obsolete).28

Cost /kɒst/ (say kost) noun 1.  the price paid to acquire, produce, accomplish, or maintain anything: the cost of a new car is very high.2.  a sacrifice, loss, or penalty: *it is more important to have meaningful relationships with other human beings than it is to `get ahead' at the cost of such relationships –JUNIE MOROSI, 1975.3.  (plural) Law —the sums which the successful party is usually entitled to recover for reimbursement of particular expenses incurred in the litigation.4.  (plural) Law —the charges which a solicitor is entitled to make and recover from the client as remuneration for professional services.

– verb (cost or, for defs 7 and 8, costed, costing)– verb (t) 5.  to require the expenditure of (money, time, labour, etc.) in exchange, purchase, or payment; be of the price of; be acquired in return for: it cost 50 cents.

6.  to result in a particular sacrifice, loss, or penalty: it may cost him his life.7.  to estimate or determine the cost of.

–verb (i) 8.  to estimate or determine costs.–phrase 9. at all costs or at any cost, regardless of the cost.

10. at the cost of, incurring the loss of.11. bear the cost(s), to take on all the financial burden.12. cost a bomb, Colloquial to be extremely expensive.13. cost an arm and a leg, Colloquial to cost a lot of money.[Middle English, from Old French, from coster, from Latin constāre stand together]–costless, adjective29

39. There is no indication in the National Law, extrinsic material or surrounding

statutory context that the less-common meaning was intended. Adoption of the

less common meaning would be so significant a change to the indemnity basis

on which costs have been historically been awarded that one would have

expected to see some indication in the explanatory material if this meaning was

intended. There is no such indication.

28 OED Online (Oxford University Press, December 2018) Web. 11 December 2018.

29 Macquarie Dictionary (Pan McMillan, 7th edn, 2017)

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40. It is difficult to say which interpretation best achieves the purpose of the

legislation, and should thus be preferred.30

41. In the end, I am not satisfied that it is appropriate to depart from the ordinary and

primary English meaning of the word ‘costs’ as, effectively, amounts paid.31

There is no apparent basis on which the narrower ‘legal professional costs and

disbursements’ interpretation should be adopted, and this would be anomalous

given the forum. There is also no apparent basis for the less common,

‘expenses and losses’ interpretation to be adopted.

42. This means that it is not open to the Tribunal to order under section 201 that the

applicant be reimbursed the amounts she lost as income due to attending the

Tribunal, or the day she spent preparing for those attendances. It is also not

open to the Tribunal to compensate the applicant under section 201 for the time

she spent debriefing clients but was unable to bill due to the effect of the

Board’s decision.32

Conclusion

43. The applicant has been successful in the proceedings and is entitled to be

reimbursed the filing fee, whether under section 48 of the ACAT Act or section

201 of the National Law. However, the Tribunal does not have the power to

make an order for payment of the other amounts claimed by the applicant, under

either provision. The costs application in other respects must therefore be

refused.

………………………………..Presidential Member MT Daniel

30 Legislation Act 2001 section 13931

32 Even if those losses could be considered to be attributable to the proceedings

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HEARING DETAILS

FILE NUMBER: OR 15/2018

PARTIES, APPLICANT: Kerry Ann Howard

PARTIES, RESPONDENT: Psychology Board of Australia

COUNSEL APPEARING, APPLICANT N/A

COUNSEL APPEARING, RESPONDENT Ms Musgrove

SOLICITORS FOR APPLICANT N/A

SOLICITORS FOR RESPONDENT ACT Government Solicitor

TRIBUNAL MEMBERS: Presidential Member MT Daniel

DATES OF HEARING: 26 February 2018