Judge Harbison

Vice President

1. In August 2011 Vivian Pereira applied to the Psychology Board of Australia to be registered as a clinical psychologist. Her application was refused. She appealed to this Tribunal for review of that decision. This first Tribunal hearing took place in 2013. On the 25 October 2013 the Tribunal dismissed her appeal and affirmed the Board's decision to refuse her application.
2. Ms Pereira appealed to the Supreme Court. On the 9 September 2014 the Supreme Court set aside this original Tribunal decision and returned the matter to the Tribunal to be heard by a different panel.
3. On the 21 November 2016, a differently constituted panel of this Tribunal again affirmed the decision of the Board and dismissed her application.
4. The respondent now seeks that Ms Pereira pay its costs of both those Tribunal hearings. It does not seek the costs of the Supreme Court appeal because they were dealt with by the Supreme Court at the time the matter was before it.

1. Section 109 of the Victorian Civil and Administrative Tribunal Act 1998, gives this Tribunal the power to award costs. The section establishes that in the normal course, each party should bear their own costs. It is only if one of the preconditions under section 109 is established and an order for costs can be made. The Tribunal may only exercise its discretion to award costs under that section if it is satisfied that it is fair to do so having regard to various considerations set out in that section.
2. The respondent says that if that section was to be applied, it would justify this application for costs.
3. This is because the way in which Ms Pereira has conducted this proceeding has unnecessarily disadvantaged the respondent, thus invoking section 109(a) of the Act. The respondent asserts that Ms Pereira has attempted to deceive the Tribunal regarding the extent of her clinical supervision and subpoenaed unnecessary amounts of material from the Tribunal in preparation for each hearing.
4. The respondent also relies on section 109(c) which allows the Tribunal to take into account 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. The respondent says that Ms Pereira's application had no merit.
5. However, the respondent principally relies not on this power but on the power given to the Tribunal under section 201 of the Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic). This section provides as follows:

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

S 203 Relationship with Act establishing responsible tribunal

This division applies despite any provision to the contrary to the Act that establishes the responsible tribunal but does not otherwise limit that Act.

1. The respondent says that section 201 effectively provides an unlimited discretion to this Tribunal as to the award of costs. In particular the respondent submits that the Tribunal is not required or indeed authorised by section 201 to apply the default position set out in section 109 of the Victorian Civil and Administrative Tribunal Act 1998.
2. In contrast, the respondent says section 201 should be applied taking into account the need to exercise the discretion judicially. It argues that provisions 201 and 203 require the Tribunal to follow the normal practice of the courts that in the absence of special circumstances a successful litigant should receive its costs. It says this leads to the conclusion that it would be necessary to show some grounds for exercising a discretion to refuse such costs.
3. The respondent submits that there is no reason not to order costs to the successful party, and that instead there are many compelling reasons to do so.
4. Firstly the respondent contends that the decision of the Tribunal made on the 21 November 2016 contained such trenchant criticisms of the applicant and the applicant's case that it is just to make an award of costs against her.
5. The respondent in its written submissions identified many occasions in the Tribunal's decision in which the Tribunal had pointed up very significant deficits in the applicant's case.
6. In particular the Tribunal found her evidence to be very unsatisfactory and in some respects prepared in a deliberately misleading way.
7. Her application failed because she was unable to point to any clinical supervision experience or training in the field of clinical psychology.
8. The respondent says that the decision of the Tribunal constitutes such a complete repudiation of Ms Pereira's case that an award of costs should be made.
9. The respondent also refers to the failure of Ms Pereira to provide any independent expert evidence to support her case. It characterised her application as being based on a misguided reliance on collateral matters, where the application itself was of no merit.
10. There is some force to the submissions. Ms Pereira's case when presented at the second Tribunal hearing, was indeed flimsy.
11. However, I have determined that in the particular circumstances of the case it is not appropriate to award costs in respect of either Tribunal hearing.
12. This decision is based upon the fact that Ms Pereira was essentially invited by the terms of the Supreme Court order to relitigate.
13. Effectively the decision of the Supreme Court was that the way in which both the Board and the Tribunal in its first decision had approached Ms Pereira's application was wrong at law.
14. In its original decision the Board had found that Ms Pereira was ineligible to be considered under the transitional pathway for endorsement as a clinical psychologist.
15. The first Tribunal also took that view. That approach was found by the Supreme Court to be fundamentally flawed. Thus neither the Board nor the first Tribunal had considered her application from the appropriate perspective.
16. As the Supreme Court set out at paragraph 114 of its judgement dated the 9 September 2014:

[114] The reality is that at no time since the plaintiff wrote to the Board on the 29 November 2010 seeking endorsement through the transitional pathway has the Board grappled with the plaintiffs repeated requests that she be considered for endorsement under that pathway. The Board never considered the possibility of granting the plaintiff endorsement under that pathway and never turned its mind to whether the plaintiff's circumstances warranted an extension of time. The Board consistently took the view that the only pathway that was open to the plaintiff was the qualifications and supervised experience pathway.

1. The first Tribunal, at the urging of the Board, took the same approach. The Tribunal accepted a submission from the Board that the transitional pathway was not available and that the Tribunal had no powers in relation to that pathway.
2. At paragraph 117 of the judgement of the Supreme Court His Honour said this:

[117] The absence of this information meant that VCAT did not have a proper understanding of the practical workings of the transitional pathway and the circumstances in which it may be appropriate to extend the 30 September 2010 deadline.

[118] While VCAT was correct in stating that the Board was not obliged to ensure equality of outcome, VCAT was wrong to reject the plaintiff's submission that the Board was required to apply its discretion to extend time in a consistent manner. Importantly, VCAT's observations were made in a vacuum because it did not require the Board to produce any documents about the precise circumstances of the two psychologists, what decisions the Board had made in relation to them, and the reasons for those decisions.

1. The effect of these findings was that Ms Pereira had been successful in her submission that the Board had misdirected itself on considering her application in the first instance, and that the first Tribunal hearing had fundamentally misdirected itself as well. Both the Board and the first Tribunal had made an error of law which vitiated their respective decisions.
2. It was only in those circumstances that the second Tribunal hearing was commenced.
3. Indeed, His Honour provided detailed directions as to the way in which this second hearing would need to approach its task, and in particular provided detailed directions as to the evidence which would need to be provided by the Board in order to enable the Tribunal to understand the components and practical workings of the transitional pathway. These directions gave legitimacy to the applicant's extensive requests for documents from the Board.
4. I agree with the applicant's submission that effectively the Supreme Court decision meant that the second Tribunal hearing was the first opportunity Ms Pereira had been given to have her claim assessed in accordance with law, and with the benefit of considering a range of relevant documents.
5. I accept the respondent's submissions that her case was not strong and indeed was ultimately found to be of no merit. I also accept that in the course of making those findings, the second Tribunal found that she had deliberately misled the Tribunal about the extent of her clinical experience.
6. However, I agree with counsel for the applicant that there was a prospect that despite her lack of clinical experience she may have legitimately thought that she had a good chance of success. One of the submissions made on the applicant's behalf was that clinical experience was not required as there were other persons approved who had no clinical experience. This is a field in which it is difficult to obtain independent expert opinion.
7. The second Tribunal hearing was her first real opportunity to ventilate this submission, and other arguments put in her favour in respect of the transitional pathway.
8. For all of these reasons it is my view that it is not appropriate for an order to be made in the respondent's favour for costs.
9. I am of the same view whether applying section 109 of the VCAT Act or sections 201 and 203 of the national law.
10. The application for costs is therefore dismissed.