Plaintiff v Defendant

1 The plaintiff, Dr Beverley Peers, is a registered medical practitioner under the Health Practitioner Regulation National Law ('the National Law').[1] The defendant, the Medical Board of Australia ('the Board'), has taken action against Dr Peers which has resulted in a decision on 21 March 2025 to impose certain conditions on Dr Peers' registration.

2 In this proceeding commenced by an originating motion on 31 December 2024, Dr Peers seeks, in effect, to impugn the action taken against her by the Board. For the reasons that follow, the proceeding should be dismissed.

3 The National Law establishes a national registration and accreditation scheme for the regulation of health practitioners. In Peers v Medical Board of Australia[2] (a judgment involving Dr Valerie Peers not the current plaintiff) Gorton J summarised some of the relevant provisions of the national law in the following terms:

The legislative scheme relevantly provides that:

(a) The objective of the registration scheme is to 'provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered';

(b) The 'main guiding principle' of the registration scheme is that the 'protection of the public' and 'public confidence in the safety of services provided by registered health practitioners' are 'paramount'. Another guiding principle is that the registration scheme operate in an 'efficient, effective and fair way';

(c) The Board, being one of a number of National Boards, has functions including overseeing the 'receipt, assessment and investigation of notifications about persons' who are registered as health practitioners, and referring 'matters about health practitioners who are or were registered ... to responsible tribunals';

(d) 'Notifications' may be given to the National Agency (being the Australian Health Practitioner Regulation Agency, also known as Ahpra) about conduct of a registered health practitioner, after which Ahpra must 'as soon as practicable' refer the notification to the relevant Board;

(e) The Board may then take immediate action, including the suspension of a health practitioner's registration, if the Board 'reasonably believes' that the practitioner 'poses a serious risk to persons' and it is 'necessary to take immediate action to protect public health or safety';

(f) Prior to taking any immediate action, the Board must invite the practitioner to make a submission and have regard to any submission made by that practitioner;

(g) Having decided to take immediate action, the Board must, as well as giving written notice of that decision, then 'immediately' 'take the further action ... the Board considers appropriate including, for example, investigating the practitioner'. The notice must include advice that the practitioner may appeal the decision to VCAT. As noted above, that right of appeal is an appeal on the merits, in the sense that VCAT may confirm the decision, amend the decision, or substitute another decision and in substituting a decision VCAT has the same powers as the Board;

(h) The Board must then 'ensure an investigator it directs to conduct an investigation conducts the investigation as quickly as practicable, having regard to the nature of the matter to be investigated.' The investigator must give a report to the Board 'as soon as practicable after completing an investigation'. It is noteworthy that these provisions emphasise the need to avoid delays, but also anticipates that different investigations will take different periods of time. The report must include the investigator's findings and recommendations about any action to be taken; and

(i) On receipt of the investigator's report, the Board 'must decide' to take no further action, or to take the action the Board considers 'necessary or appropriate under another Division', or to refer to matter to another entity.[3]

4 Two provisions of the National Law are central to the determination of the matters before me. Section 156 relevantly provides:

(1) A National Board may take immediate action in relation to a registered health practitioner or student registered in a health profession for which the board is established if-

(a) the National Board reasonably believes that-

(i) because of the registered health practitioner's health, conduct or performance, the practitioner poses a serious risk to persons; and

(ii) it is necessary to take immediate action to protect public health or safety; or

(e) the National Board reasonably believes the action is otherwise in the public interest.

(2) However, the National Board may take immediate action that consists of suspending, or imposing a condition on, the health practitioner's or student's registration only if the Board has complied with section 157.

5 Section 157 of the National Law provides as follows:

(1) If a National Board is proposing to take immediate action that consists of suspending, or imposing a condition on, a registered health practitioner's or student's registration under section 156, the Board must-

(a) give the practitioner or student notice of the proposed immediate action; and

(b) invite the practitioner or student to make a submission to the Board, within the time stated in the notice about the proposed immediate action.

(2) A notice given to a registered health practitioner or student under sub-section (1), and any submissions made by the practitioner or student in accordance with the notice, may be written or verbal.

(3) The National Board must have regard to any submissions made by the registered health practitioner or student in accordance with this section in deciding whether to take immediate action in relation to the practitioner or student.

6 The Board is established by regulations made under s 31 of the National Law as a National Board. Section 35 of the National Law provides for the functions of the National Board, relevantly they include:

(a) To register suitably qualified and competent persons in the health profession and, if necessary, to impose conditions on the registration of persons in the profession;

(b) To oversee the receipt, assessment and investigation of notifications about persons who are registered as health practitioners under the National Law; and

(c) To establish panels to conduct hearings about health and performance and professional standards matters in relation to persons who are registered in the health profession under the National Law.

The Board's actions and the course of the proceeding

7 On 27 November 2024 the Board proposed to take immediate action under s 156(1)(a) of the National Law against Dr Peers. In particular, the Board proposed to suspend Dr Peers' registration on the basis that her conduct posed a serious risk to persons and it was necessary to take immediate action to protect public health and safety.

8 On 28 November 2024, in accordance with s 157 of the National Law, the Board notified Dr Peers of its proposal to take action, set out the reasons for its proposed action, the material that it had considered in proposing that action and invited Dr Peers to make written or oral submissions or both. The Board requested any written submissions to be provided by 11 December 2024 and indicated that any oral submissions could be made on 12 December 2024.

9 The proposed action notified on 28 November 2024 has been superseded by proposed action notified to Dr Peers on 7 March 2025 and so it is unnecessary to set out the matters in the 28 November 2024 letter in detail. However, in summary the Board's reasons for its proposed action were:

(a) Certain Facebook posts by Dr Peers in 2021 promoted anti-vaccination sentiments and undermined established public health programs regarding Covid-19;

(b) In June 2024 Dr Peers participated in a video interview on the social media platform Rumble in which she expressed anti-vaccination sentiments and undermined established public health programs regarding Covid-19; and

(c) The provision of incomplete or inaccurate information to an Ahpra investigator and a failure to comply with Notices to Produce Information to an Investigator under Schedule 5 of the National Law.

10 On 4 December 2024 Dr Peers emailed the Board seeking an extension of time in which to provide her submissions. On 6 December 2024 the Board confirmed that Dr Peers could have until 3 January 2025 to provide written submissions and that any oral submissions would be considered at a Board meeting held on 9 January 2025.

11 On 31 December 2024 Dr Peers initiated this proceeding by originating motion. In her originating motion Dr Peers sought relief in the following terms:

1. The court to declare that the Health Practitioner Regulation National Law Act 2009 (Vic) under s 163 Schedule 5 provides for a reasonable excuse to not provide requested documents or information by reason of the right against self-incrimination.
2. The court to declare that the repealing of state public health orders in relation to Covid-19 constitute a change in circumstances whereby the matter of intention of the Medical Board to suspend my registration contrary to law is rendered moot and has no utility.
3. The court to declare that the Board is foreclosed from exercising the immediate action suspension power under s 156 of the Health Practitioner Regulation National Law Act 2009 (Vic) where the alleged conduct has occurred many months or years ago.
4. The court to declare that a person's occupation does not preclude them from political speech protected under the implied freedom of political communication under the Commonwealth Constitution.
5. The court to declare that s 156 of Health Practitioner Regulation National Law Act 2009 (Vic) is invalid in its application to the plaintiff because it impermissibly burdens the implied freedom of political communication against government health policy in relation to Covid-19 contrary to the Commonwealth Constitution.
6. The Court to grant injunctive relief against the Boards proposed action to suspend under s 156 of the Health Practitioner Regulation National Law Act 2009 (Vic) until the legality of its conduct is decided at full hearing in the matter seeking an order for prohibition.

12 Dr Peers sought urgent ex parte injunctive relief in the Practice Court before me on 8 January 2025. During the course of the hearing for that relief, Dr Peers advised the Court that the Board had determined not to proceed against her until at least 28 January 2025. In the circumstances, I declined to grant an ex parte interim injunction and adjourned the matter for two weeks to allow the Board to be served and provided with an opportunity to make submissions in relation to the application for the injunction.

13 On 22 January 2025 the matter came before her Honour Judd J in the Practice Court. Her Honour refused the application for an interlocutory injunction on the basis that Dr Peers had not established a prima facie case and that, in any event, the balance of convenience did not favour the grant of an injunction.

14 Dr Peers has sought leave to appeal the decision of Judd J refusing her application for an interlocutory injunction.

15 On 24 January 2025 Dr Peers wrote to the Board requesting further and better particulars of the allegations made against her. On 27 January 2025 Dr Peers filed written submissions with the Board in relation to the proposed suspension.

16 On 5 March 2025 Dr Peers filed her written outline of submissions in this proceeding. Those submissions pre-date a decision of the Board on 7 March 2025 which substantially changed the nature of the proposed action which the Board sought to take in relation to Dr Peers. With some adaptation, Dr Peers maintains those same grounds apply in relation to the actions of the Board notified to her on 7 March 2025 and, ultimately, determined by the Board on 21 March 2025.

17 In her 5 March 2025 submissions Dr Peers asserts that she is entitled to relief on four bases:

(a) Schedule 5 of the National Law provides a medical practitioner with a 'reasonable excuse' to refuse to provide documents where production might tend to incriminate the individual;

(b) The matters the subject of the Board's concern were moot because in relation to Covid-19, the relevant public health orders have all been repealed, the position statement of AHPRA has been superseded and what is left are Board guidelines and codes, which have no force of law;

(c) Dr Peers' conduct cannot be said to represent a danger to the public in circumstances where that conduct occurred six months to three years ago and no action had been taken by the Board until November 2024; and

(d) Section 156 of the National Law imposes an impermissible burden on the freedom of political communication.

18 On 7 March 2025 the Board met. At that meeting it considered the request for further particulars and Dr Peers' submission and decided to propose an alternative form of immediate action from that which it had previously proposed.

19 On 7 March 2025, in accordance with s 157 of the National Law, the Board wrote to Dr Peers notifying her of the proposed action, its reasons for the proposed action, the material upon which it relied and inviting her to make further written submissions by 19 March 2025 or oral submissions on 21 March 2025.

20 The proposed action contained in the letter of 7 March 2025 comprised the imposition of conditions on Dr Peers registration which were:

(a) A condition that Dr Peers be supervised by a registered general practitioner with relevant training and at least 10 years' experience in the delivery of the Australian immunisation schedule for any patients seeking or obtaining advice on any vaccination or treatment or prevention of COVID-19;

(b) A condition that Dr Peers only practice at approved locations; and

(c) A condition that Dr Peers, whilst identifying herself as a medical practitioner, must not on social media or in other social or informal forum, publicly endorse or disseminate the views of any person(s) or group with respect to vaccinations for COVID-19 which are inconsistent with or undermine the recommendations and guidance published by Australian Technical Advisory Group on Immunisation and in the Australian Immunisation Handbook published by the Department of Health and Aged Care, as amended from time to time, or the Board's Good medical practice: a code of conduct for doctors in Australia, as amended from time to time.

21 The 7 March 2025 letter sets out the reasons the Board was considering the proposed conditions on Dr Peers' registration. Those reasons may be summarised as follows:

(a) In June 2024 Dr Peers participated in a video interview which was posted on the social media video sharing platform Rumble. In that interview Dr Peers was identified as a medical practitioner and in that capacity expressed views which were anti-Covid-19 vaccination and which the Board characterised as seeking to undermine confidence in the Australian Government's Covid-19 program; and

(b) In the course of its investigations the Board had sought to inspect patient files held by Dr Peers and had been advised by her that those files had been returned to the patients, because 'I note that AHPRA has been seizing doctors' files'.

22 The Board refers in the 7 March 2025 letter to prior instances of Dr Peers expressing anti-Covid-19 vaccination views on Facebook in 2021. In relation to these instances the Board states as follows:

The Board acknowledges that Dr Peers asserts her Facebook account is no longer active and there is no evidence that she has continued to post similar views to Facebook or X (formerly Twitter) since 2021. In these circumstances, whilst the Board has considered these social media posts in the context of Dr Peers' notification history, the Board does not consider these historical posts inform the current assessment of serious risk in 2025.

23 In the 7 March 2025 letter, the Board sets out the basis for its reasonable belief regarding Dr Peers' conduct posing a serious risk to persons and the public in the following terms:

The Board considers the views expressed by Dr Peers in the June 2024 interview about COVID-19 vaccination have the potential to adversely influence the public's perception and understanding of the risks and benefits associated with the COVID-19 vaccination, confidence in the public health recommendations and vaccination program and influence their decision-making as to obtaining medical advice and uptake of the vaccination by themselves and family members. Dr Peers' views are given further legitimacy by her identifying herself as a medical practitioner during the interview. The Board reasonably believes that this poses a serious risk to persons and the public.

...

The Board considers that such behaviour [the return of medical files] described by Dr Peers involved a deliberate and calculated act by a registered medical practitioner to avoid regulatory oversight of her practice. It is conduct that undermines a professional regulator's ability to perform its functions and ensure patient safety. It is also conduct that is at odds with expectations on medical practitioners to maintain and retain medical records and facilitate continuity of patient care.

24 The 7 March 2025 letter notes that the Board has not made a final decision in relation to the matters contained in the letter and as indicated above, invited Dr Peers to make submissions in relation to the contents of the 7 March 2025 letter.

25 On 17 March 2025 Dr Peers provided the Board with written submissions in relation to the 7 March 2025 letter and indicated that she did not wish to make oral submissions. Those written submissions were focused entirely on the question of whether the proposed conditions imposed an impermissible burden on the implied freedom of political communication under the Constitution.

26 On 21 March 2025 the Board considered Dr Peers' submissions and determined to impose the conditions on her registration that it had notified to her on 7 March 2025 and for the reasons which had been notified to her in that letter.

27 On 11 April 2025 Dr Peers filed reply submissions in this proceeding which were focussed on the question of whether the Board's imposition of conditions upon her registration imposed an impermissible burden on the implied freedom of political communication under the Constitution.

28 At some point, the material does not reveal when, Dr Peers made an application under s 40 of the Judiciary Act 1903 (Cth) to remove part of her cause pending in this Court into the High Court. This application was refused with costs on 1 May 2025.[4]

29 In her oral submissions, Dr Peers maintained all of the grounds for relief from her initial written outline of submissions. The first three of those grounds may be disposed of shortly:

(a) The Board does not rely on any failure to produce documents under Schedule 5 of the National Law for the imposition of conditions on Dr Peers' registration. To the extent that the Board did rely on such matters in its 28 November 2024 notification to Dr Peers, the 7 March 2025 letter makes plain that it no longer does so. This ground provides no basis for challenging the actions of the Board notified to Dr Peers on 7 March 2025 and determined by the Board on 21 March 2025;

(b) The Board's concerns regarding the June 2024 video and the views expressed by Dr Peers in that video do not rely on the existence of public health orders arising under the Public Health and Wellbeing Act 2008 (Vic) or upon the position statement of AHPRA regarding Covid-19 vaccines. Rather, as is evident from the letters of 7 March 2025 and 21 March 2025, the Board is concerned that those public statements promote inaccurate and/or unbalanced views about Covid-19 vaccination and seek to undermine public confidence in Covid-19 vaccination and, as a result, amongst other things, impact on the provision of safe and competent medical care to the public. Nothing in this ground of Dr Peers' argument is relevant to the actions proposed by the Board in its 7 March 2025 letter and taken by the Board in its 21 March 2025 decision; and

(c) The Board in its 7 March 2025 letter makes clear that it does not rely on the 2021 social media posts by Dr Peers for its current assessment of serious risk in 2025. In these circumstances, Dr Peers' argument on this ground amounts to the proposition that the Board could not rely on statements made in June 2024 in commencing action against her in November 2024. There is nothing in this proposition.

30 This leaves as the only substantive ground on which Dr Peers asserts an entitlement to relief the question as to whether s 156 of the National Law imposes an impermissible burden on the implied freedom of political communication under the Constitution. For the reasons which follow, it does not.

31 In determining whether a law impermissibly burdens the implied freedom of political communication under the Constitution, three questions must be answered:

(a) Does the law effectively burden freedom of political communication?

(b) Is the purpose of the law legitimate, in the sense that it is compatible with the maintenance of the constitutionally prescribed system of government?

(c) Is the law reasonably appropriate and adapted to advance that purpose in a manner compatible with the maintenance of the constitutionally prescribed system of government?[5]

32 A law will be invalid if the first question is answered yes and either the second or third question is answered no.[6]

33 In this proceeding the Board accepts that the power to take immediate action under s 156 of the National Law is capable of burdening the freedom of political communication. In other words, it accepts that the answer to the first question is yes. In both her written and oral submissions, Dr Peers effectively seemed to regard an answer 'yes' to the first question as determinative of her success on this ground. Her submissions, did not, in any meaningful way, grapple with the second and third questions.

34 It is plain that each of the second and third questions should be answered yes.

35 The provisions of the National Law and s 158, in particular, are self-evidently compatible with the maintenance of the constitutionally prescribed system of representative government. As her Honour Quigley J said in Fidge v Medical Board of Australia:[7]

The purpose of the National Law is set out in s 3, and the guiding principles in s 3A. In summary, the purpose of the National Law is to establish a national registration and accreditation scheme for the regulation of re-registered health practitioners to provide for the protection of the public and public confidence in the safety of services provided by registered health practitioners. This purpose is, plainly, compatible with the maintenance of the constitutionally prescribed system of government.[8]

36 Within the broader context of the National Law, s 156 has as its immediate purpose the protection of the public from serious risks to persons, from threats to public health and safety, and to taking action in the public interest. Those purposes are legitimate and compatible with the maintenance of the constitutionally prescribed system of government. The second question should be answered yes.

37 Next, it is necessary to consider whether s 156 is reasonably appropriate and adapted to advance the legitimate purposes identified above in a manner that is compatible with the maintenance of the constitutionally prescribed system of government. I am satisfied that it is:

(a) The Board is required to form a reasonable belief as to the necessity of taking immediate action to protect public health or safety or that the action is otherwise in the public interest;

(b) Before taking any action under s 156, the Board must give the practitioner notice of the proposed immediate action and invite the practitioner to make submissions to the Board to which it must have regard; and

(c) Under s 199 of the National Law, the practitioner has a right to appeal a suspension of registration or the imposition of a condition on their registration.

38 It is to be observed that s 156 does not directly prohibit or operate on conduct in the nature of political communication. Any such effect is appropriately described as indirect or incidental.[9]

39 The provisions of s 156 are reasonably appropriate and adapted to advance the legitimate purpose of the protection of the public from serious risks to persons, from threats to public health and safety, and to taking action in the public interest. I am fortified in that conclusion by the conclusion of Quigley J in Fidge v Medical Board of Australia in relation to s 178 of the National Law. Whilst that provision is somewhat different to s 156, her Honour's reasons in relation to that provision (with appropriate adaptation) apply with equal force to s 156.

40 It is important to note that it is a law itself which must impermissibly burden the freedom of political communication for the constitutional principle to be engaged, not the particular instance of the application of a law. In Comcare v Banerji,[10] Gageler J (as his Honour then was) said:

Wotton v Queensland establishes that the validity of a law which burdens freedom of political communication by empowering an exercise of an administrative discretion is to be determined by asking in the first instance whether the burden is justified across the range of potential outcomes of the exercise of that discretion. If the burden is justified across the range of potential outcomes, that is the end of the constitutional inquiry. The law is valid and the validity of any particular outcome of the exercise of discretion is to be gauged by reference solely to the statutory limits of the discretion. There is no occasion to consider whether the scope of the discretion might be read down in order to ensure that the law is within constitutional power. There is in consequence no occasion to consider whether a particular outcome might fall within the scope of the discretion as so read down, and there is accordingly no occasion to consider whether a particular outcome falls within the scope of the discretion having regard to the implied freedom.[11]

41 For the reasons set out above, I am satisfied that the burden imposed on political communication by s 156 of the National Law is justified across the range of potential outcomes. There is in consequence no occasion to consider whether the particular decision of the Board on 21 March 2025 falls within the scope of the discretion having regard to the implied freedom.

42 Nonetheless, even if it were appropriate to consider the particular action taken by the Board pursuant to its decision, I would not regard its decision as imposing an impermissible burden on political communication:

(a) The condition imposed as to supervision for any patients seeking or obtaining advice on any vaccination or treatment or prevention of Covid-19 is not a condition which relates to political communication but to the delivery of health care;

(b) The same may be said of the condition imposed in relation to approval of practice locations; and

(c) The condition regarding public statements does not restrict Dr Peers from engaging in political communication regarding Covid-19 vaccines - it only restricts her from identifying herself as a medical practitioner, if when doing so, she is expressing or disseminating views that are inconsistent with or undermine the published recommendations and guidance of the identified bodies. In the circumstances, the burden imposed on political communication is slight.

43 In her submissions, Dr Peers sought to characterise the conditions imposed on her registration as 'tantamount to suspension'. For the reasons I have indicated, the particular outcome of the Board's consideration is not a matter that informs the consideration of whether s 156 of the National Law imposes an impermissible burden on political communication. In any event, I would reject Dr Peers' categorisation. The conditions imposed by the Board do not prevent her from practising - they are not akin or tantamount to suspension.

44 Dr Peers has failed in relation to each of her grounds and her application should be dismissed.

45 In Peers v Fletcher & Anor,[12] Kaye JA said:

The starting point ... is that the ordinary rule is that, unless there are particular circumstances which would justify a different order, costs must follow the event, so that the successful party is ordinarily entitled to his or her costs of the proceeding.[13]

46 Dr Peers submits that, even if she is unsuccessful, each party should bear their own costs. Essentially, her argument in this respect seems to be that each party should bear their own costs because:

(a) It is the Board's choice to be legally represented;

(b) The Board has a 'real interest and benefit in knowing the limits of their jurisdictional powers so that they do not exceed them'; and

(c) The prospect of a costs order will place a chilling effect on persons who wish to challenge the jurisdiction of regulatory bodies.

47 In the circumstances of this case, none of those arguments should be accepted.

48 First, as a general rule it is desirable for parties to be legally represented. These proceedings illustrate why. Dr Peers has brought a fundamentally flawed proceeding which almost certainly would not have been commenced if she had received proper legal advice. Further, the National Law establishes the Board as a body corporate. Dr Peers' submission ignores the requirement in r 1.17 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) that, except where otherwise ordered, the Board cannot take any step in a proceeding save by a solicitor - in other words, it did not have a choice regarding obtaining legal representation.

49 Secondly, it is apparent that Dr Peers brought this proceeding prematurely in circumstances where the Board had not, when she brought the proceeding, made a final decision regarding what action should be taken. Her first three grounds relate primarily to the proposed immediate action which the Board notified in November 2024 but were largely rendered otiose in relation to the proposed immediate action notified in March 2025. Further, her primary argument regarding the imposition of an impermissible burden on the freedom of political communication, could properly be described as bound to fail. In this regard, it is noteworthy that Judd J found that the plaintiff had not established a prima facie case in relation to any of her grounds for interlocutory relief.

50 The inutility of the current proceeding is given greater emphasis by the fact that the National Law provides Dr Peers with a right of appeal against a decision to suspend her registration or impose conditions upon it by the Board under s 156. There was no need to anticipate the Board's decision and bring proceedings for prohibition on grounds of an alleged excess of jurisdiction.

51 Thirdly, whilst the Board no doubt does have an interest in ensuring that it does not act in excess of jurisdiction, in the circumstances of this case, there was simply no good argument that it had.

52 Finally, there is a further compelling reason why costs should be awarded against Dr Peers in this matter. The day before the hearing Dr Peers communicated with chambers and the Board indicating she wished to withdraw her application if the Board agreed not to seek costs of the proceeding. At the hearing of the matter I adjourned the proceeding so that senior counsel for the Board could obtain instructions regarding this offer.

53 I was advised at the resumption of the hearing that the Board would not seek costs of the proceeding in the event that Dr Peers wished to discontinue. Despite this being precisely what Dr Peers had asked for on the previous day, she rejected the offer of the Board. Her reasons for doing so made no sense. She seemed concerned that the circumstances of this proceeding should be treated separately from her application for leave to appeal Judd J's refusal of an interlocutory order. In its open offer to her, the Board made clear that it was not seeking to resolve any issue in relation to the application for leave to appeal and that any question of the impact of a discontinuance of this proceeding on her application for leave to appeal would be a matter for the Court of Appeal. I endeavoured to explain this to Dr Peers, but she insisted that she would not accept the Board's offer and, as a result, the matter proceeded for trial.

54 Ordinarily, an offer that if a party withdraws their claim they will not be pursued for costs would not be a particularly compelling factor in the exercise of the discretion to award costs after a hearing. However, in this instance, that offer was precisely what Dr Peers had asked for on the previous day.

55 Dr Peers says payment of costs in her case will have a 'chilling effect' on those who seek to review regulatory bodies. I do not accept that this is so. The rationale for the ordinary costs rule includes dissuading parties from maintaining claims or defences which have poor prospects of success and encouraging parties to accept reasonable offers of settlement. In the circumstances of this case, a costs order will serve to emphasise the importance of both those matters.

56 Dr Peers has been unsuccessful in her application, none of her reasons for not awarding costs against her are compelling and, for the reasons I have outlined above, there are compelling reasons to the contrary. Dr Peers should pay the Board's costs.

[1] Being the Schedule to the Health Practitioner Regulation National Law Act 2009 (Qld), applied in Victoria by s 4 of the Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic).

[2] [2024] VSC 630.

[4] [2025] HCADisp 86 (Gordon and Beech Jones JJ).

[5] Brown v Tasmania (2017) 261 CLR 328, 375-376 [155]-[156] (Gageler J); see also 360 [90], 363-364 [104] (Kiefel CJ, Bell and Keane JJ), 398-399 [237], 413 [271] (Nettle J), 431 [316]-[317], 478 [481] (Gordon J).

[7] [2024] VSC 471.

[9] Hogan v Hinch (2011) 243 CLR 506, 556 [95]-[96] (Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).

[10] [2019] HCA 23; (2019) 267 CLR 373.

[12] [2024] VSCA 275. This decision involves Dr Valerie Peers, not the current plaintiff.