1 The respondent must pay the applicant's costs of this proceeding to be taxed in default of agreement in accordance with the Supreme Court Scale.

2 Certify for senior and junior counsel.

Mr R. Edmunds, Counsel, instructed by Telford Story and Associates

1 The background to this proceeding is to be found in the Tribunal's determination published 14 December 2004 [2004] VCAT 2433.

2 The background to the proceeding and the history of Mr McGoldrick's relationship with the medical registration system in Victoria is set out in the Tribunal's reasons which I incorporate by reference.

3 The Tribunal affirmed the respondent Medical Practitioners Board of Victoria's determination to decline to re-register Mr McGoldrick as a medical practitioner. As a consequence, the Board, through its Counsel, Mr Maidment SC, has sought an order that Mr McGoldrick pay its costs of the proceeding either:

(a) Fixed in the sum slightly in excess of $125,000;

(c) To be taxed in accordance with such scale as the Tribunal deems appropriate.

4 Mr Maidment SC, who represented the Board, referred to Section 109 of the Victorian Civil and Administrative Tribunal Act 1998 which governs costs awards in these proceedings. The section states, inter alia:

(1) Subject to this Division, each party is to bear their own costs in the proceeding.

(2) At any time, the Tribunal may order that a party pay all or a specified part of the costs of another party in a proceeding.

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

(a) whether a party has conducted the proceeding in a way that unnecessarily disadvantaged another party to the proceeding by conduct such as -

(i) failing to comply with an order or direction of the Tribunal without reasonable excuse;

(ii) failing to comply with this Act, the regulations, the rules or an enabling enactment;

(iii) asking for an adjournment as a result of (i) or (ii);

(v) attempting to deceive another party or the Tribunal;

(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;

(e) any other matter the Tribunal considers relevant.

5 Mr Maidment conceded that Section 109 established a prima facie rule that costs lay where they fell in Tribunal proceedings. Nevertheless, he said the Tribunal had a wide discretion under Section 109 to make costs awards in appropriate circumstances. He referred to Nichol v Victims of Crime Assistance Tribunal [2000] VCAT 840 at para [26]; Adams v Stonnington City Council [2000] VCAT 1876 at para [14]. Mr Maidment said it was necessary to consider each costs application according to its own particular facts. He referred to Stelridge Pty Ltd v Handbags International Pty Ltd [1999] VCAT 8. He said that the Tribunal was required on a costs application such as this to consider the several factors referred to in sub-section (3) to determine whether in terms of sub-section (2) it was fair to make a costs order. He referred to Mornington Peninsula Shire Council v Fox [2003] VCAT 1524. He noted the Tribunal's power to consider in connection with a costs application, matters other than those enumerated. He referred to Funtime Investments Pty Ltd v Yass Valley Council [2004] NSWLEC 300.

6 According to Mr Maidment, Mr McGoldrick had conducted the proceeding in a way that unnecessarily disadvantaged the Board by attempting to deceive the Tribunal and bringing a false case before it. He referred to Section 109(3)(a)(v). He said Mr McGoldrick conducted the proceeding vexatiously in so far as his contentions were based upon a false case. He referred to Section 109(3)(a)(vi). Finally he said that since Mr McGoldrick's 'false case' had no tenable basis in fact, a costs award should be made under Section 109(3)(c).

7 Mr Maidment made extensive reference to the transcript of his cross-examination of Mr McGoldrick in the course of the proceeding. He placed particular reliance upon the transcript of Mr McGoldrick's final address representing himself at the hearing on 8 December 2004 where at T/S 14 ll 17-19 Mr McGoldrick said:

The undisputed evidence is that I have lied to the Medical Practitioners Board and VCAT in attempts to explain my illegal treatment of patients whilst unregistered. This is proven and acknowledged unreservedly by me. [Mr McGoldrick continued stating that this false evidence was given as a result of episodic reactive depression from which he had suffered since he was a medical student in the 1960s.]

8 Mr McGoldrick represented himself at the substantive hearing of this proceeding. On the costs hearing he was represented by his counsel, Mr Edmunds. Mr Edmunds challenged the premise of Mr Maidment's application that Mr McGoldrick had given deliberately untruthful evidence to the Board and this Tribunal. He traced a series of items of correspondence and the progress of Mr McGoldrick's cross-examination in this proceeding in December 2004, submitting that over the years Mr McGoldrick's disclosures may have been confused, incomplete or perhaps somewhat incoherent but that they were not wilfully untruthful.

9 He said that the proper course was to give effect to the presumption established by Section 109(1) of the Victorian Civil and Administrative Tribunal Act 1998 that each party should pay its own costs. He referred to the determination of Justice Kellam and Deputy President Davis issued in Fan v Business Licensing Authority (14 March 2001) and Todd v Marine Board of Victoria [2003] VCAT 713. He noted that in this second case the Tribunal had declined to make a costs order against an unsuccessful applicant even where it found that his case had no tenable basis in fact or law albeit that this was not clear at the outset of the proceeding. He referred to Pektas v Victorian Taxi Directorate [2002] VCAT 379 where the Tribunal again dismissed a costs application by a respondent despite finding that there was no basis for the applicant's case.

10 Mr Edmunds noted that whilst the Tribunal has made costs orders against unsuccessful applicants in person, such orders have typically been made when clear warning has been given by the respondent that costs will be sought if the claim fails at hearing. He referred to Towie v State of Victoria [2002] VCAT 1395 and Towie v Medical Practitioners Board of Victoria [2003] VCAT 1169 at paras [3] - [8]. He also referred to the remarks of Deputy President McKenzie in Schou v State of Victoria [1999] VCAT 631. He said it was wrong to assume other than that the Tribunal will not adopt a policy that costs follow the event. He referred to Carlin Pty Ltd v Motor Car Traders Guarantee Fund [1999] VCAT 1976 and Cooper v Boroondara City Council [2001] VCAT 2429.

11 According to Mr Edmunds, the Tribunal has been even less ready than the Courts to make costs awards on a basis higher than the usual party party scale, viz. on a solicitor client or full indemnity basis. He referred to Pure Capital Investments Pty Ltd v Fasham Johnston Pty Ltd (unreported 31 October 2002); Golem v Transport Accident Commission (No. 3) [2002] VCAT 422; (2002) 19 VAR 279; Caimakamis v Royal and Sun Alliance Insurance Australia Limited [2002] VCAT 94; Hobsons Bay City Council v Haouli (2001) 7 VPR 249 and Trycala Importers and Wholesalers Pty Ltd v Growmac Importers Pty Ltd [2001] VCAT 1445.

12 Mr Edmunds said that Mr McGoldrick did have a tenable basis for commencing his proceeding and commenced it in the belief that each party would bear its own costs. It was common ground that aside from a costs order made by the Court of Appeal, there had been no costs orders sought or made in the complex of previous hearings before the Board and the Tribunal.

13 Mr Edmunds submitted that if contrary to his primary contention, any costs order were made, it should be made on the basis which would require the bill to be assessed by the Principal Registrar or his delegate pursuant to Section 111 of the Victorian Civil and Administrative Tribunal Act 1998.

TRIBUNAL'S FINDINGS IN SUBSTANTIVE DETERMINATION

14 Mr McGoldrick's case before the Tribunal in 2004 was that despite the earlier discreditable matters referred to in paragraph 35 of the substantive determination, he had recovered his good character. At paragraphs 38 to 41 the Tribunal found that the applicant:

Made every endeavour to conceal from both the respondent [that is the Board] and VCAT in the previous proceedings

the extent of his illegal treatment of patients in the period 1993 to 1995. In determining the question of costs I must proceed upon the premises laid down in the Tribunal's substantive findings. These constitute binding determinations between the parties which it is not competent in the present circumstances without their having been set aside on appeal, to seek to go behind. In so far as Mr Edmunds' detailed submissions based upon the documentary evidence exhibited at the hearing sought to do that, I must reject them. For what it is worth, the more natural meaning of the admissions made by Mr McGoldrick and quoted above is supportive of Mr Maidment's interpretation of events rather than Mr Edmunds'.

15 In my view the admissions made by Mr McGoldrick and the findings made by the Tribunal in its substantive determination amply support a finding that there was no tenable basis in fact or the case made by Mr McGoldrick. In Medical Practitioners Board of Victoria v McGoldrick [1999] VSCA 215; (1999) 15 VAR 462 the Court of Appeal set aside an earlier adjudication of this Tribunal whereby the Tribunal had set aside a determination of the Medical Practitioners Board declining to re-register Mr McGoldrick as a practitioner. Buchanan JA with whom Tadgell and Phillips JJA concurred said at [24]:

The fact that the respondent gave false evidence is a grave reflection upon his character. It was dishonest and disclosed a readiness to break the law when it suited him. Medical practitioners occupy a position of considerable trust, and it is in the public interest that they should merit that trust. Accordingly, it is to be expected that medical practitioners will be scrupulously honest in their dealings with patients, with other doctors and those in related professions such as nurses, radiologists and technicians and support staff and with the government departments with which they deal in the course of their practice. In my opinion the Tribunal was bound to have regard to the fresh instances of the respondent's dishonesty constituted by his false testimony.

[1999] VSCA 215; (1999) 15 VAR 462, 468

16 His Honour concluded that the Tribunal had failed to give proper weight to its findings that Mr McGoldrick's evidence could not be accepted in a number of significant respects. This was of significance in the Court of Appeal's view in assessing his character [1999] VSCA 215; (1999) 15 VAR 462, 469. It follows from the lead given by the Court of Appeal that the issue of Mr McGoldrick's character and his veracity as a witness was 'front and centre' in any subsequent proceedings in which he sought re-registration. Once it was found that following the Court of Appeal's strictures on this subject, he had given further unreliable evidence to both the Board and this Tribunal in the recent past, it is difficult to see how his application for re-registration could have succeeded.

17 It will be recalled that in making admissions in his closing statement Mr McGoldrick sought to explain the unreliable evidence which he had given on a number of occasions as being attributable to episodic reactive depression from which he had suffered since a young man. The contention seemed to be that this reactive depression persisted as a cause of the giving of unreliable evidence even up to the early parts of the Tribunal's hearing in December 2004. Needless to say this is inconsistent with the larger case which Mr McGoldrick sought to make based upon a report by Ms Lechner, a psychologist whose evidence was to the effect that Mr McGoldrick's psychological problems had been overcome and that he was remorseful for his earlier errors of judgment.

18 In my view these considerations provide a surer basis for the success of the present application than contentions based upon Mr McGoldrick having misled the Tribunal or attempted to do so.

19 The Board gave no warning that a costs order would be sought. Nevertheless as Deputy President McKenzie said in Schou's case, that fact in itself cannot be determinative of a costs application. Mr Maidment said that it was only after the admissions made by Mr McGoldrick in his closing address last December that the Board reversed the policy that it had followed until then and determined to make a costs application should it succeed in the substantive determination in the proceeding.

20 In accepting the Board's costs application I am fortified by the following additional considerations. The fitness of medical practitioners to act as such both with regard to their technical expertise and integrity is a matter of the highest significance to society. The rewards and status of medical practice in our society make it amongst the most highly prized occupations. The investigation and adjudication of questions relative to the conduct and fitness of medical practitioners are therefore by their nature both highly important to society at large and the practitioner or aspiring practitioner in particular. They are complex and time consuming to adjudicate upon, therefore the nature and complexity of such proceeding would be such as might render it just for there to be a departure from the prima facie rule that costs lie where they fall in this proceeding. See Section 109(3)(d). Mr Edmunds noted that Mr McGoldrick has had no less than four applications to be re-registered as a medical practitioner following the lapse of his registration as such in 1986 to 1987. Not all of those have 'gone the distance' but they have resulted in no less than three hearings in this Tribunal. Mr McGoldrick's quest to return to the Medical Practitioners' Register has been expensive for the community. There was no suggestion that the actual cost to the Board of the present proceeding was not the figure stated from the bar table, namely one in excess of $125,000. Part of the regulatory cost of this entire campaign, namely the costs of the present proceeding is in my view appropriately to be borne by Mr McGoldrick himself.

21 The next question is what form of costs order should be made. I accept Mr Edmunds' contention that it would be quite inappropriate simply to adopt the figure stated as the cost as between solicitor and own client from the bar table. While accepting implicitly that this represents the actual committed outlays of the Board, it is not necessarily clear that it is just that that amount rather than some percentage of it should be paid by Mr McGoldrick. I was not taken by either side to the standard authorities upon the award of costs upon a full indemnity basis in Court. Mr Maidment however conceded the correctness of submission put by Mr Edmunds that such awards of costs should be rarer in Tribunal than they are in Court. Such orders were unheard of even in Court a generation ago. Since then they have become more common but nevertheless are clearly the exception rather than the rule. Accepting that the matters relied upon by the Board justify the making of an award of costs as between parties despite the presumption in Section 109(1) of the Victorian Civil and Administrative Tribunal Act 1998 against such orders, I am not persuaded that they justify making an award of costs on a full indemnity basis. I need not stay to consider whether such an award should in the present circumstances have been made in Court. The Tribunal is not a Court. Even when the presumption established by Section 109 has been displaced it does not cease to have significance. The Tribunal should generally be a no costs jurisdiction; but always a jurisdiction where the costs are low rather than higher.

22 In my view it is appropriate that the costs should be awarded not upon a full indemnity basis but upon a Court scale. In commercial matters generally the relevant County Court scale has been resorted to. Certainly that has been the practice in lists such as the Retail Tenancies List. In view of the great significance to the community and to the individual involved of a person's status as a medical practitioner, something which goes beyond mere dollars and cents, I believe that these matters are of such significance in proceedings of any complexity that where a costs order is in contemplation, it is appropriate to make it by reference to the scale of costs in the Supreme Court.

23 The final question is what certificates if any, should be given with regard to the attendance of Counsel. Mr Edmunds drew attention to the fact that at the hearing Mr Maidment SC appeared with a junior, Mr Clements. Mr Edmunds primary submission was that there should be no costs award at all. He submitted in any event that there should be no certificate for two counsel. I was not taken to the well known authorities as to when it is appropriate to certify the two counsel, including senior counsel. In the circumstances I believe it is appropriate that I express my view on the subject in short compass. What I have said already with regard to the complex history of this proceeding, the fact that the status of Mr McGoldrick has already been to the Court of Appeal once and that it is a status of the first importance to society as a whole - all these things justify the retention of senior and junior counsel. Therefore I will certify accordingly.