Costs under the National Law – inconsistency and uncertainty remains

  • TurkAlert
  • Published 26.11.2020
Psychology Board of Australia v Asher (VCAT 2020)

Issue

Many tribunals have considered the means by which costs are determined in proceedings under the National Law. However, that approach is being challenged in some jurisdictions, including Victoria and Queensland.  

VCAT has wrestled with this issue and its recent decision in Psychology Board of Australia v Asher (VCAT 2020) marks yet a new direction. 

In Asher, VCAT was required to decide whether awarding costs is governed by s195 of the National Law or s109 of the VCAT Act.  

A similar question was considered and decided differently as recently as September in Nursing and Midwifery Board of Australia v Kumar (VCAT 2020). Adopting a ‘hybrid’ approach, VCAT decided it could award costs but considered the ability to do so tempered by the overarching approach for parties to bear their own costs.  

Judgment

In Asher, VCAT departed from the hybrid approach. It decided the costs provisions in the two Acts are relevantly inconsistent and that s195 of the National Law prevails. VCAT also rejected the submission that applying s195 means that costs follow the event.  

Instead, VCAT noted it was neither possible nor desirable to have a comprehensive list of what factors are relevant when determining costs. Rather, the circumstances of each case must be considered before deciding if an award of costs is appropriate. VCAT recognised a registration board has a statutory obligation to bring proceedings and that a practitioner may put the board to ‘proof’. The approach to costs in disciplinary proceedings may also differ from review proceedings.  

A relevant factor in Asher was the ‘seriousness and strength’ of the case against him. On this occasion, VCAT appears to have been persuaded that Mr Asher’s conduct was so egregious and the case against him so strong that he should bear the costs of the regulatory response required.

Implications

Recent decisions continue to demonstrate the difficulty and inconsistency in the approaches to awarding costs in a national scheme. Asher gives clarity on some points but it may require an appellate court to finally resolve the position in Victoria or to prompt discussion about whether the National Law requires amendment to achieve the decade’s old goals of consistency and the ‘efficient and effective operation of the scheme’.

Louise Nixon

Partner

P: 07 3212 6716

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Andrew Forbes

Partner

P: 07 3212 6715

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