1 The respondent pay the applicant's costs of the application, including all reserved costs, save and except for the costs associated with the Directions Hearing of 1 May 2006, such costs to be taxed in default of agreement on County Court Scale "D".

2 The respondent's application for costs is dismissed.

[Note: These written reasons consist of an edited transcription of reasons given orally on 8 December 2006]

1 The substantive part of this proceeding was before me for nine days of hearing in June and July 2006.

2 Both parties now make application for their costs in relation to the proceeding. The applicant does not seek costs in relation to one Directions Hearing but I do not think that anything greatly turns on that.

3 The facts of this case and the matters in dispute are very clear from my reasons of decision. In particular I refer to paragraph 38 of those reasons where I say that the dispute is whether the unprofessional conduct within the meaning of s 48 of the Psychologists Registration Act 2000 (the Act) is unprofessional misconduct of a serious nature or unprofessional misconduct which is not of a serious nature.

4 I also refer to paragraph 69 of my reasons where I set out what was basically admitted by the applicant. I there state :

Bearing in mind that the applicant has admitted the truth of the allegations contained in the amended notice and, as such, has conceded that her conduct was unprofessional conduct which was not of a serious nature within s 48B, I must now decide as to whether the unprofessional conduct of the applicant was of a serious nature pursuant to s 48(1)(a).

5 I note here that in the event that I found that the conduct was not of a serious nature, suspension did not apply which was part of the decision of the Board. I also found, as Mr Bourke who now appears for the respondent has informed me, that there was common law professional misconduct. However, in my view, that takes the respondent's case little further because the penalties that I have to apply in the findings that I made came in relation to a different section of the Act which did not allow any suspension.

6 The applicant had at all times made it clear before me that she would accept the orders which I have made. Apparently that position was made clear at some time during the respondent tribunal hearing below. It was therefore open to the respondent to accept the applicant's position as being reasonable and under those circumstances, the long hearing, which was conducted before me, would have been avoided although it may have been necessary for me to have a bare knowledge of the facts in such a case to make a determination. Mr Bourke said that it would have been impossible for the respondent to come to that conclusion (that the conduct was not serious misconduct) unless the full hearing was heard because there were a number of facts in issue of which I eventually made findings in the applicant's favour. He said there was no way the respondent could have come to that decision prior to that time and of course that would have involved a full hearing.

7 I disagree with that submission. If one looked at the whole body of the evidence which was given by witness statements, save and except for a police constable, and I do not think a lot would turn on that, it would not have been unreasonable for a model litigant to come to the view that while the applicant was guilty of professional misconduct, she was not guilty of such conduct of a serious nature. Indeed, there seems to have been little or no previous proceedings, certainly before this Tribunal, where non-sexual conduct of a psychologist has been found to be of a serious nature. Thus, it should have been clear to the respondent that it would be unlikely to succeed in upholding its decision.

8 Mr Bourke has cited the Court of Appeal authority in Board of Examiners v XY (unreported 20 September 2006) [2006] VSCA 190. He cites that for the proposition that costs should not in circumstances other than fraud and the like be awarded against a statutory tribunal, such as the respondent.

9 In the Board of Examiner's case, the Court of Appeal was dealing with a hearing before the Board of Examiners which is different to this Tribunal. It is different in as much as this Tribunal's power arises from the Victorian Civil and Administrative Tribunal Act 1998 and that Act specifically sets out a regime of awarding and not awarding costs in s 109.

10 There are a number of enactments where Parliament has said that in spite of s 109, this Tribunal should not award costs. For example, I refer to the Taxation Administration Act 1997. Thus, if Parliament had intended that the Psychologists Registration Board be immune from an award of costs in this jurisdiction, they would have stated so either in the Psychologists Registration Act or in the Victorian Civil and Administrative Tribunal Act. They have not done so. Under those circumstances, what was said about the award of costs not to be made against a statutory tribunal in the Board of Examiner's case should not apply to matters in this Tribunal.

11 Mr Lewis, counsel for the applicant, has cited a number of cases to do with a court proceeding where applicants that have been guilty of some offence but not guilty of all the offences to which they were charged where costs have been awarded. In particular, he has cited Tenthy v Curtis (a decision of the Supreme Court (NT) 1988 37 A Crim R at p 450). He also cited Saleeba v Beck (a decision of Olsson J in the Supreme Court (SA) 1991 54 A Crim R 114). Mr Lewis also cited a matter of Dias v Psychologists Registration Board, Davis DP (as she then was) which was at this Tribunal [2004] VCAT 1357 where costs were in fact awarded against a statutory tribunal, viz, the respondent in this particular case, is the same as it was in Dias' case.

12 Thus, I must now decide whether it is fair to award costs to either of the parties having regard to the provisions of s 109 of the Victorian Civil and Administrative Tribunal Act 1998.

13 Section 109(1) of that Act starts off with the proposition that each party is to bear their own costs. However sub-section (2) gives power to the Tribunal to make an order for costs where it is fair to do so and it cites in sub-section (3) a number of examples of when it is proper to make an order for costs. In particular, Mr Lewis relies on sub-section (3)(b), (c), (d) and (e). They read :

(3) The Tribunal may make an order under sub-section (2) only if satisfied that it is fair to do so, having regard to -

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding;

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law;

(d) the nature and complexity of the proceeding;

(e) any other matter the Tribunal considers relevant.

14 Mr Bourke has not taken me specifically to each of the matters in s 109 for where he says costs should be awarded. However, I will assume that he would be saying that the costs should be awarded on the same basis that Mr Lewis has said.

15 I will first deal with the respondent's application for costs.

16 Before so doing, I will repeat that, in my view, save for minor matters mentioned by Mr Bourke, the orders that were eventually made in this matter were very similar to those to which the applicant desired to be made right at the outside of this proceeding. There are certain matters that may differ, for example, the applicant was reprimanded by me. Mr Lewis may not have specifically said that he would accept a reprimand, but he did say that he would accept any punishment on behalf of his client that was in the section of professional misconduct that was not serious and certainly reprimand was within that section. Thus, on any reasonable view of the facts of this case and the decision of this case, in my view, it is abundantly clear that to use the colloquial phrase that lawyers and others sometimes use, the applicant is the winner and the respondent is the loser.

17 Dealing now with the respondent's application for costs, in my view, it is unreasonable to say that the applicant unreasonably prolonged the time taken to complete the proceeding. Mr Lewis was concise in his cross-examination and was concise in documents presented and submissions made. Therefore the respondent cannot succeed in its costs order under that sub-section.

18 The relative strengths of the claims made by each of the parties included whether the party has made a claim that has no tenable basis in fact or law. Bearing in mind that I have said that the applicant was in fact the winner, it necessarily follows that the respondent cannot say that the applicant had no tenable basis.

19 In my view this proceeding is both complex in its nature and was a very difficult proceeding. So that clearly is a matter that I should take into account.

20 Other matters that have been suggested that I should take into account, in particular that I found a finding of common law professional misconduct. That was a finding that the applicant did not admit to. However, ultimately the applicant was successful in the application and the respondent was not, because I found the applicant's conduct was not misconduct of a serious nature.

21 Further, it is said that the respondent needed to test the evidence. As I have said already, in my view, taking a reasonable view of the evidence, the result was not surprising. Under those circumstances, I do not see that it would be appropriate for the respondent to be awarded its costs and I will dismiss the respondent's application for costs.

22 I now turn to the applicant's application for costs, and I will go through the same process as I did with the respondent's application for costs.

23 Mr Lewis states that the respondent has been guilty and responsible for prolonging the time taken unreasonably to complete the proceedings. He cites the fact that there were witness statements that were not relied on; that there was a lot of material cited and filed with the Tribunal that had no great relevance; that the cross-examination of the parties by Ms Young, who then appeared for the respondent, was very lengthy. He also cites the fact that during the hearing time was taken up in making an application for me to disqualify myself. That application was ultimately rejected. That did not take a lot of time compared with the nine days of hearing but it did take a substantial amount of time. The hearing was stood down for some time to enable Ms Young to obtain instructions and she was given instructions to make the application. In my view, Mr Lewis is right when he said that application (for disqualification) had no tenable basis for being made. It arose from what was no more than a suggestion by myself for the parties to see if they could resolve their differences. However, that application by itself, I do not think unreasonably prolonged the proceeding. While the respondent's material was very detailed, I do not think a criticism can be made of the respondent in relation to that material and neither do I think a criticism can be made in relation to the length of time that was taken in cross-examination. Though one could describe it as longer rather than shorter. Clearly, Ms Young was attempting to do her job in the best way she could.

24 As I found in dealing with the respondent's application for costs that the applicant's case did have a tenable basis in fact or law, the respondent's position was more doubtful. In my view, however, it would be wrong to say that although an experienced practitioner could have predicted the outcome, that there was no possibility the respondent could be successful although I believe such an outcome was probable.

25 I have also found in relation to the respondent's case, the proceedings were in a complex and difficult nature. There must necessarily be the same finding here. Clearly, this was a proceeding that was complex in fact and law.

26 I also take into account the fact that during the case, I gained the impression very early on that the respondent was doing more than behaving as a model litigant attempting to act as a contradictor in the proceedings. The impression I gained was in fact that the respondent was taking the side of Ms L the complainant, in the way it conducted the proceeding. Soon after Mr Lewis, at the commencement of the proceeding, made an application for an order for witnesses to be out of the hearing room, Ms Young made an application for Ms L to remain in the hearing room. This application was fought by Mr Young with some vigour on the basis that Ms L should be in the hearing room. I took the view that Ms L was not a party to the proceedings and she was eventually ordered out. However, to some extent, that set the tone for the way that the rest of the hearing was to be conducted for the respondent including the application that I disqualify myself. That is, it appeared the respondent was more concerned about satisfying Ms L than performing its duty pursuant to the Act.

27 It is very difficult to go through the proceedings and find examples of such matters but Mr Lewis has drawn my attention to a matter that occurred (p 256 line 26 of the transcript). It is there stated, according to Mr Lewis (this is when the applicant was being cross-examined by the respondent's counsel ) :

Did you think yourself at the time Ms Howell that "Ms L" could have been distressed or agitated by not having ever received a response to her request to talk to you or to the letter she had written to you.

(I then asked) 'I'm just wondering where these ... questions are going. This sort of sounds like you are sort of presenting a case on behalf on "Ms L" and I say that because it is quite clear what happened. It is like a bit of quicksand that everyone kept going into.

28 This is a matter I will take into account pursuant to s 109(3)(e).

29 When taking into account the nature and complexity of the proceeding, the difference between the applicant's application for costs and the respondent's application is that the applicant was largely successful in this proceeding whereas the respondent was not.

30 In dealing with other matters that are relevant, I also consider that the success that the applicant has had in this proceeding, that it has been a very expensive proceeding, that it is very difficult and expensive for someone to come here and defend themselves. I also note in relation to these matters the old adage that what's good for the goose is good for the gander should apply.

31 I note that Mr Bourke, on behalf of his client, has applied for costs. Thus, to say that costs should be awarded where a respondent is successful and an applicant is not and then say that costs should not be awarded where an applicant is successful but a respondent is not seems to smack of hypocrisy.

32 I note that in the case of Pearson Gills v Chiropractic Board, I awarded costs in favour of the Board. Under those circumstances, in my view, where there has been success in a matter, it is proper taking into account the matters in s 109 of the Act where the applicant can bring itself (or herself in this case) into one of those considerations, in this case "the nature and complexity of the proceeding", that there be an award of costs in her favour and thus I will make an award of costs. I notice that the respondent asked for costs on Scale "D" and Mr Lewis, after some discussion with myself, has amended his claim to costs on Scale "D". I will make such an order. Mr Lewis has said that he does not desire costs for a Directions Hearing that was made on 1 May and I will exclude that but otherwise there will be an order that the respondent pay the applicant's costs of the application, including all reserved costs, save and except for those costs related to the Directions Hearing of 1 May 2006 and it will also include the costs of this application.