1. the application of the transitional guidelines such that Dr Kolta did not need to complete any further registrar program;[28]

1. the 'fundamental flaws' of the Board's decision of 7 April 2020;[29]
2. the unfairness and unreasonableness of the Board's proposal for Dr Kolta to qualify for endorsement;[30] and
   1. the credibility, expertise and weight of the evidence of Dr Kolta and her witnesses as compared to the Board's expert witness.[31]

1. Equally there is no question that the Applicant's review application would have been unnecessary if the Respondent had made the correct decision in either 2010 or 2020.

Did The Board take positions which were unreasonable?

1. The Tribunal acknowledges that when considering whether it is appropriate to award costs, it is relevant to the exercise of the discretion to consider whether:
   1. the decision was reasonable when made;[32] and
   2. it complied with its obligations under the National Law or its duty to act as a model litigant.[33]
2. The Tribunal found that the Board relied 'upon a narrow application of the registration and endorsement criteria'.[34] Having regard to the further findings of the Tribunal, outlined by the Applicant's Counsel, it also follows that neither the Board's decision on 3 December 2010 nor 7 April 2020, were reasonable when made:[35]
   1. The Tribunal accepted Dr Kolta's account of the circumstances in which she made her initial application to the Board in 2010 and that she reasonably, and in good faith, relied upon advice that the coursework undertaking in the Graduate Diploma of Clinical Psychology would be accepted as substantially equivalent to corresponding coursework in an approved qualification for the purpose of endorsed registration in clinical psychology.[36]
   2. The Tribunal found that the purported response from the Board dated 3 December 2010 refusing Dr Kolta's application did not comply with the obligations placed upon the Board under ss101 and s102 of the National Law. The Tribunal further held that the response deprived Dr Kolta of the option to rely upon the Transitional arrangements in a 'fair and reasonable way' and also placed her in 'a most invidious position'.[37]
   3. The Tribunal further accepted that exceptional circumstances prevented Dr Kolta from following up the Board's purported response dated 3 December 2010 (assuming such letter was sent).[38]
   4. The Tribunal also found that the Board's position in the proceeding in support of the 7 April 2020 decision was found to have 'fundamental flaws'.[39] The Tribunal held that the Board's position was not 'consistent with the guiding principles of the National Law' or its guidelines and was contrary to the 'clear authority' of the Pereira case.[40] Critically, the Tribunal said that the Board's interpretation flies 'in the face of expert evidence and cannot be accepted as the intention of Parliament, consistent with the policy objectives of the regulatory scheme'.[41]

Did The Board's conduct during the proceeding cause Dr Kolta to incur further unnecessary costs and delay?

1. It is also relevant to the discretion to award costs whether the conduct of the unsuccessful party caused the successful party to unnecessarily incur further costs and delay.[42]
2. The Applicant's Counsel submits that the conduct of the Board caused Dr Kolta to unnecessarily incur further costs and delay, most notably in its failure to adduce expert evidence in a timely manner. In support of this contention, Counsel referred to the following sequence:[43]

1. The Board did not rely upon any expert evidence to support its decision of 7 April 2020; 2. By Orders of the Tribunal dated 24 June 2020 (varied by order dated 29 July 2020) the Respondent was to file and serve any further material upon which it intends to rely by 31 July 2020. The Respondent did not file any expert evidence by that date; 3. On 23 October 2020, Dr Kolta filed and served the material upon which she sought to rely upon, including an expert report from Dr Allen; 4. On 5 November 2020, pursuant to further orders of the Tribunal, the Board filed an electronic copy of the material upon which the parties proposed to rely at the compulsory conference, which did not include any expert evidence from the Board;

1. On the day the compulsory conference was listed on 18 December 2020, the Board applied to adjourn the compulsory conference, partly because, after being in possession of Dr Kolta's material for almost two months, the Board wished to obtain expert evidence in reply;[44]

1. On 17 February 2021, the Board filed and served the expert report of Professor Alison Garton; and 2. Between 22 February 2021 and 26 February 2021, multiple email correspondence to the Registrar by the parties for a directions hearing(s) to be listed because the Board initially refused to consent to allow Dr Kolta to file material in response to Professor Garton's report and to allow her to provide a document to her expert, which the Board claimed was covered by without prejudice privilege. The Board ultimately conceded both issues on 26 February 2021.
2. The key conclusions of Professor Garton were that Dr Kolta's qualifications are not substantially equivalent to an accredited qualification in clinical psychology and that her psychological practice is not substantially equivalent to the requirements of supervised practice under the Registration standards. In Submissions in Reply, Counsel submits that Dr Kolta incurred significant costs filing the following material:
   1. Dr Kolta's supplementary witness statement dated 6 April 2021;
   2. Expert reports of Dr Felicity Allen dated 10 March 2021 and 30 April 2021; and
   3. Expert report of Dr Cook dated 9 May 2021.
3. Despite this additional material, the Board did not file any further expert report from Professor Garton or any other relevant expert.
4. In her evidence before the Tribunal, Professor Garton confirmed that she would not change anything in her expert report, even after reading the additional material filed by Dr Kolta. The position maintained by Professor Garton was surprising in view of the relevance and weight of that evidence and the inconsistencies and concessions that Professor Garton made when giving evidence.[45] Accordingly, the Board relied solely upon Professor Garton to support its view that Dr Kolta's qualifications were not substantially equivalent.[46]
5. In our view, the Board's reliance upon the opinions of its own expert reflects a serious failure to appreciate the nature and limitations of such evidence, as highlighted in Professor Garton's responses under cross examination, when she conceded that:[47]

(a) She 'absolutely could not' give any opinion about whether Dr Kolta's post-qualifications practice was 'substantially equivalent' to supervised practice under the Registration Standard because 'that's a Psychology Board of Australia matter, not an accreditation matter.'[48] > > (b) She had never worked as a 'supervisor' for a registrar program for clinical psychology and it was 'not her place' to assess substantial equivalence and it was 'not what [she] was asked to do'.[49]

7. Significantly, the Tribunal made the following findings regarding the Board's expert evidence, namely that Professor Garton:[50]
   1. gave evidence which revealed inconsistencies and the limited relevance of her evidence;
   2. gave opinions on topics outside the scope of her expertise, which undermined her credibility and impartiality;
   3. admitted that she did not have the relevant expertise;
   4. refused to make concessions which were plainly warranted;
   5. gave the unsubstantiated opinion that Dr Kolta should not be doing clinical psychology work at schools because it 'could be' unethical; and
   6. provided no assistance to the Tribunal on the issue of substantial equivalence of Dr Kolta's qualifications or of supervised practice.
8. The Tribunal further noted in its Reasons:[51]

[12] The Applicant comes before the Tribunal with an impeccable work history and impressive academic qualifications. The Respondent takes no issue with either description. Indeed, the factual circumstances in this case are largely not in issue. However, each party relies upon a markedly different interpretation of relevant statutory provisions. Accordingly, the key issue for determination by the Tribunal is which is the correct interpretation, of s 98(1) of the National Law, advanced by each party.[52]

1. Accordingly, we agree with the Applicant's Counsel that had the Board elected not to file any expert evidence and narrowed the scope of this dispute to the issue of statutory interpretation or filed relevant and compliant expert evidence, this matter could have either been resolved earlier or required a shorter hearing.
2. There is no question that a large proportion of the costs incurred by Dr Kolta for this proceeding involved dealing with expert evidence, including reviewing Professor Garton's report, preparing Dr Kolta's supplementary witness statement, and obtaining further material from Dr Allen, Dr Cook and Dr Barret in response to Professor Garton, examining and cross-examining expert witnesses and making submissions about the expert evidence.
3. We concur with the Applicant's Counsel to the effect that the approach to and conduct of the proceeding by the Respondent caused avoidable delay and unnecessary additional costs for Dr Kolta.

Were the costs incurred by Dr Kolta reasonable, necessary and in the public interest?

1. In Dr Kolta's affidavit she set out the total costs and fees incurred (not including this costs application) of $135,608.88 comprising the following:
   1. VCAT application fee; $ 663.50
   2. VCAT hearing fee (x 3 days); $ 7,606.50
   3. Audio recording of the hearing; $ 394.35
   4. Dr Felicity Allen; $ 7,480.00
   5. Dr Roger Cook; $ 5,000.00
   6. Dr Barrett; $ 205.00
   7. PGC Legal; and $ 3,379.53
   8. Ms Evelyn Tadros of Counsel $110,880.00
2. The Applicant's Counsel submits that it is in the interests of both parties and the efficiency of finalising this proceeding and to prevent further litigation, that the Tribunal fix certain costs (as set out above) that the Board should pay and that such fixed amount should be the full amount of her costs because these costs are reasonable, necessary and in the public interest. In addition, the Tribunal should order that the Board pay the balance of the costs claimed as agreed, or in default of agreement, as assessed by the Costs Court.

1. The Applicant's Counsel identified the following circumstances which contributed to the level of costs:
   1. The matter proceeded over two years;
   2. the review and preparation of extensive materials, including witness statements, expert reports, written opening and closing submissions;
   3. preparation of a Tribunal book of 2069 pages; and
   4. a three-day hearing with five witnesses.
2. Dr Kolta engaged counsel directly, with PGC Legal only being engaged to advise and support counsel, when necessary. Counsel submits that significant costs were thereby saved. By comparison, the Board engaged a large law firm involving at least five lawyers plus counsel of over ten years standing.
3. Counsel further submits that these costs are reasonable as they are below those allowed under the County Court scale of costs.[53]

1. We accept that the nature and complexity of this matter clearly warranted both parties being legally represented.
2. We further accept that the nature of the costs incurred, as listed above, were clearly appropriate and justified. The quantum of such costs will be dealt with below.

1. If Dr Kolta wanted to become accredited as a clinical psychologist, after the Board made its decision on 7 April 2020, we accept that her only option was either to seek review of the Board's decision by the Tribunal, or, according to the Board, complete another accredited Clinical Psychology program. Dr Kolta estimates that the second option would cost her approximately $33,320.00, to repeat the same subjects that she has already done, and additionally complete a two-year registrar program of supervised professional practice.
2. We agree that there was an important public interest in pursuing the proceeding. The critical issue in dispute was the interpretation of s 98(1) of the National Law.[54] This issue clearly has the potential to affect more than just Dr Kolta's case. It also affects the way in which the Board interprets and applies its own obligations when assessing substantial equivalence.
3. In our view, the fact that Dr Kolta did run this case was therefore critically important and in the public interest.
4. Furthermore, Dr Kolta has attested to the circumstance that the fact that this proceeding raised issues of public interest was the main reason that she was able to afford to bring this litigation.[55] In our view, this is an important reason why it is appropriate that the Tribunal order the Board to pay those costs so that there is at least not a disincentive for individuals to litigate such matters nor for counsel and solicitors to act on a conditional costs bases in public interest matters.[56]

Has Dr Kolta been seriously prejudiced by the Board's conduct?

1. Dr Kolta has attested to:
   1. the adverse consequences of not being able to work as a clinical psychologist for over 11 years, in terms of prejudicing her career, her earnings and her mental health;[57] and
   2. the enormous stress, time and cost involved in prosecuting the review process and being subjected to lengthy cross- examination and criticisms of her conduct by Professor Garton.[58]
2. In our view, the extent of the relevant prejudice suffered by Dr Kolta, for the purpose of this costs' application, is appropriately considered under the above heads.

1. Dr Kolta's Affidavit deposes to certain costs arrangements which she entered with her Counsel and the Australian Association of Psychologists Inc (AAP). In our view, she was not obliged to disclose such information, for the purpose of this application for costs, but did so in view of certain claims made by the Board.
2. Dr Kolta's affidavit itemises the total costs and fees which she has incurred (not including the costs of making the application for costs). Dr Kolta also deposes to her limited financial circumstances, which led her to engage her Counsel directly and enter into a conditional costs' agreement. The AAP also agreed to provide certain financial support, on condition of reimbursement, if the Board was ultimately ordered to pay her costs.
3. In our view, there is nothing unusual or untoward about anything disclosed in Dr Kolta's affidavit. The terms of any agreement or arrangement which she entered with Counsel and the AAP have no bearing upon the Tribunal's exercise of discretion in this application.

1. In Submissions in Reply, Counsel sites several special circumstances in support of Dr Kolta's claim for indemnity costs, namely, the Board's failure to act:

1. as a model litigant, including giving consideration to Dr Kolta's limited financial resources in conducting the proceeding and minimising delays;[59]

1. reasonably, in its consideration of Dr Kolta's application in both 2010 and 2020; and 2. consistently, with prior positions taken before the Tribunal.
2. In our view, there is support for each of the above circumstances in the findings of the Tribunal, referred to above. We have ultimately concluded that it is appropriate and fair to fix certain costs to be paid by the Board, as explained further below.

1. The Board's offer, dated 17 December 2021, is outlined briefly above and, for the reasons outlined below, has no relevance to or bearing upon Dr Kolta's claim for costs.
2. In the Submissions in Reply, Dr Kolta's Counsel has correctly identified serious deficiencies in the terms of the offer:[60]

1. The offer was not marked 'without prejudice except as to costs', and so is protected by negotiation privilege at common law, even in relation to the question of costs; 2. Even if the Tribunal were to take the alleged without prejudice offer into account, it does not come within the principles of Calderbank v Calderbank[61] because: 1. It was not marked 'without prejudice save as to costs'; and 2. It did not otherwise state that the Respondent intended to rely upon the offer on an application for costs if it was rejected.

1. It did not provide any reasons why it should be accepted;

1. It did not make any mention of the payment of Dr Kolta's legal costs or state that the costs would 'fall to be determined' as alleged by the Board; and 2. The offer was neither clear nor certain in its terms. It was simply a 'proposal to resolve matter' on a different basis from that which was sought and obtained, namely an order made under s 51 of the VCAT Act to 'reconsider the decision the subject of the review application'.
2. Furthermore, in our view, the Board's offer is curiously and vaguely worded:

'the Board 'anticipates upon reconsideration, it will substitute its prior decision with a decision that [Dr Kolta's] registration be endorsed in the field of clinical psychology'.

1. There is no certainty or assurance in this offer that Dr Kolta would be unequivocally granted registration in the category of clinical psychology, without further training or clinical placements, consistent with the orders which Dr Kolta sought in the proceeding.
2. We also endorse the following reasons proposed by Counsel as to why the Board's offer was unacceptable, and Dr Kolta was justified in rejecting it:[62]
   1. Further, the fact that this was not simply private civil litigation, but was an application for administrative law review of a public function is relevant: Montgomery v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 1444 at [15]; s. 112(1)(a) of the VCAT Act 1998.
   2. In any event, even if the principles of Calderbank were to apply, any non-acceptance of the alleged offer would have been perfectly reasonable. It is difficult to understand how the Board can argue that Dr Kolta would have been equally well off or better off by accepting this alleged offer when the Tribunal's judgment provided her a clear and immediate order that she is entitled to an endorsement, complete vindication in the publication of its reasons, an opportunity to apply for her costs on the basis that she had unequivocally succeeded, and precedent to ensure that the Board must change its internal policies to accord to the interpretation of s. 98(1)(a)(ii) which she contended for, a matter of importance to her.[63]

1. In our view, for the reasons outlined above, it is appropriate, under s 201 of the National Law, for the Respondent to pay the Applicant's costs.
2. In summary, we are satisfied that the following circumstances all contribute to the appropriateness of the Tribunal exercising discretion to award costs:
   1. Most significantly, the proceeding raised matters of public importance. The outcome has not only vindicated the position taken by Dr Kolta but will benefit future applicants who seek to rely upon 'substantial equivalence' and hopefully inform the Board as to the proper process for assessing compliance under s 98(1)(a)(ii) of the National Law;
   2. In matters of public importance, there is a further reason why it is appropriate to award costs in favour of a successful practitioner, so that there is at least not a disincentive for individuals to litigate such matters nor for counsel and solicitors to act on a conditional cost bases in public interest matters;
   3. Dr Kolta was wholly successful in her application for review, in circumstances where the Tribunal also made a number of adverse findings against the Board's conduct of the proceeding;
   4. The additional costs and delay occasioned by the Board's conduct;
   5. The Board's narrow interpretation of the National Law, contrary to relevant authority;
   6. The nature and complexity of the proceeding;
   7. The weight of Dr Kolta's expert evidence; and
   8. The paucity of relevant expert evidence adduced by the Board.
3. We note that President Quigley J acknowledged the desirability, in appropriate cases, to certify costs. Her Honour's comments in Yildirim v A&L Windows Pty Ltd are apposite to the current application:[64]

[15] I consider that the fixing of counsel's fees goes a significant way to quantifying the costs payable to the plaintiff and any step which is likely to avoid or reduce the effort and expense involved in a taxation of costs dispute is consistent with the overarching purpose of s 7 of the Civil Procedure Act (2010) (Vic) "to facilitate the just, efficient,

timely and cost-effective resolution of the real issues in dispute". I do not agree with the first defendant's submission that the certification of counsel's fees does not or cannot lead to earlier finalisation of the overall claim for costs.

1. In our view, it is appropriate:
   1. to order the payment of certain fixed costs, comprising out of pocket costs, the quantum of which is uncontroversial; the fees charged by experts; and certain fees charged by Counsel, all of which were necessary and reasonable;
   2. to order the payment of Dr Kolta's costs of making this application for costs, on an indemnity basis; and
   3. to order the balance of costs claimed by Dr Kolta to be paid on a standard basis.
2. Accordingly, under s 201 of the National Law, the Respondent shall pay the Applicant's costs of the proceeding, including any reserved costs and the costs of the application for costs, as follows:

1. First, the out-of-pocket expenses of this proceeding paid to the Tribunal comprising the fee for filing the Application $663.50); Hearing fees for a complex matter for 3 days (7606.50); and the fee for an audio recording of the Hearing (394.35). The Tribunal will fix these costs. 2. Secondly, fees charged by Dr Kolta's expert witnesses: 1. Dr Felicity Allen; $7,480.00 2. Dr Roger Cook; $5,000.00 3. Dr Barrett; $205.00

1. Consistent with the Tribunal findings in the Reasons, we consider that each of these expert witnesses were appropriate and necessary. We also consider that each of the fees charged were fair and reasonable and commensurate with the work respectively performed by each expert. The Tribunal will fix these costs.

1. Thirdly, there are the professional fees and disbursements charged by PGC Legal ($3,379.53). We consider that these costs are fair and reasonable and commensurate with the nature and complexity of the work performed. The Tribunal will fix these costs. 2. Fourthly, there is the sum of $15,400, comprising the four daily fees charged by Ms Tadros of Counsel for the Hearing and the compulsory conference. We consider that this sum is fair and reasonable, having regard to the applicable scale of costs. The Tribunal will fix these costs. 3. Fifthly, there are Dr Kolta's costs of making this application for costs. The Tribunal will order payment of these costs on an indemnity basis. 4. Finally, the Board shall pay the balance of Dr Kolta's costs of the proceeding, not otherwise included above, including any reserve costs, on a standard basis, to be taxed by the Victorian Costs Court in default of agreement, in accordance with the County Court costs scale applicable at the time when the costs were incurred, save that Ms Tadros's fees for work, other than that referred to in (e), shall be certified at the hourly rate of $385 including GST.
2. Orders made accordingly.

[1] Kolta v Psychology Board of Australia (Review and Regulation) [2022] VCAT 414 (Reasons).

[2] The National Law is enacted as a schedule to the Health Practitioner Regulation National Law Act 2009 (Qld). The National Law has force in Victoria under the Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic).

[3] Vero Insurance Ltd v The Gombac Group Pty Ltd [2007] VSC 117 [22].

[4] Also recognised in Mangan v Melbourne Cricket Club [2006] VCAT 792 at [9].

[5] A matter also recognised in Nursing and Midwifery Board of Australia v Kumar (Review and Regulation) (Costs) [2020] VCAT 1038 [28] (Kumar).

1. [6] Psychology Board of Australia v Wilkinson (Costs) (Review and Regulation) [2022] VCAT 597 (Wilkinson) [17]-[29]; Psychology Board of Australia v Asher (Costs) (Review and Regulation) [2020] VCAT 1281 (Asher) [10]-[12]; Kumar [20], [23]; Pereira v Psychology Board of Australia (Costs) (Review and Regulation) [2017] VCAT 610 [9]-[11]; Zhang v Chinese Medicine Board of Australia [2015] QCAT 53 (Zhang) [5]-[6], [11].

[7] Ofili v Medical Board of Australia [2016] QCAT 258 (Ofili) [72]-[73]; Zhang [15].

[8] Wilkinson [38]; Asher [10]-[12] cf Kumar [21].

[9] Kumar [24]. See also ss 4 and 3(3)(a) of the National Law.

[10] Kumar [20], [23]-[24], [26], [33]; Asher [11]-[12]. and Wilkinson [17]-[20], [23]-[24].

[11] [2006] WASAT 8. (Dawson).

1. [12] Submissions in Reply [18]; Asher [33] to [56] followed in Wilkinson [38]-[39].

[15] [2014] VSC 417.

[17] [2010] QCA 44 at [14], where Muir JA commented that 'the concept of substantial equivalence calls for a comparison of like with like'.

1. [18] Wilkinson [31], [43]; Howell v Psychologists Registration Board of Victoria [2007] VCAT 65 [30].

[20] Walker v DTGVI Pty Ltd [2011] VCAT 1988 [49]. tbc

[21] (1995) 36 NSWLR 77.

1. [24] The importance of which has been previously recognised by the QCAT: Ofili [69]-[73]; Zhang [25]-[26].

[26] Reasons [215]-[219], [225]-[226], [265]-[269].

[28] Reasons [88]-[89], [163], [267].

[29] Reasons [215]-[219], [225]-[226], [265]-[269].

1. [31] Reasons [227]-[263], [265].
2. [32] Ofili [72]-[73].
3. [33] The Board contended that this is a relevant consideration in Wilkinson [19].

[35] Applicant's submissions [14]-17]

1. [36] Reasons [106], [265(b)].
2. [37] Reasons [87]-[90], [255(d)].
3. [38] Reasons [265(c)].
4. [39] Reasons [209], [215].
5. [40] Reasons [218]-[226].
6. [41] Reasons [207], [215]-[219], [225]-[226].
7. [42] Zhang [7], [16]-[26]; Wilkinson [41].

[43] Following is a summary of Applicant's submissions [22]-[24]. we acknowledge but are not persuaded by the objections taken by Respondent's Counsel to this chronology.

1. [44] See email to the Registrar in respect of this matter dated 18 December 2020 at 12:46am from Elise Holmes of Minter Ellison.
2. [45] Reasons [230]-[248].
3. [46] Reasons [94].

1. [48] Transcript recording 3 December 2021 (Cross-examination of Prof Garton).
2. [49] Transcript recording 3 December 2021 (Cross-examination of Prof Garton).

1. [52] Refer Applicant's Closing Submissions [4]-[8]; and Respondent's Outline of Supplementary Submissions [2], [6]-[7].
2. [53] Counsel's fees under the County Court scale (80% of the Supreme Court (Chapter 1 Appendices A and B Amendment) Rules 2021) list junior counsel fees being $507.2 per hour and $5072 per day. By comparison, counsel's fees were only $385 per hour, $3850 per day. Counsel further noted that the County Court scale allows barrister's fees per hour which means that a Costs Court is more likely to allow counsel's fees in full compared to solicitor's fees which can be subject to the scale costs.

[54] Acknowledged in the Reasons [12].

1. [56] Provisions like s. 201 should not be read as being intended to have such consequences, namely that of poor decision making by the Board leading to no ability to recoup costs. Such an inherent policy was recognized in Asher [43], in the context of a disciplinary hearing and costs under s 195 of the National Law.

[57] Dr Kolta's Affidavit [12]-[18].

[58] Dr Kolta's Affidavit [14], [17]; Reasons [236], [243](c).

1. [59] Nelipa v Robertson and the Commonwealth [2009] ACTSC 16 at [97]; see also Secretary, Department of Social Services v Cassaniti (No 2) [2015] NSWSC 1795 at [29]. In Howell v Psychologists Registration Board of Victoria [2007] VCAT 65 at [26]- [27], costs were awarded under s. 109 of the VCAT Act 1998 when the Board appeared to take the side of the complainant rather than behave as a model litigant attempting to act as a contradictor.

[61] [1976] Fam 93.

[62] Submissions in Reply [34]-[35].

[64] [2021] VSC 282 [15].