REGISTRATION ACT 2000](/cgi-bin/viewdoc/au/legis/tas/consol_act/pra2000338/)

Appeal and New Trial - Appeal - Practice and procedure - Tasmania - Appeal costs fund - Power to grant indemnity certificate - When refused - Appeal from a board - Application for certificate by that board.

Appeal Costs Fund Act 1968 (Tas), ss8(1)(b), 14.

Psychologists Registration Board of Tasmania: B R McTaggart

Psychologists Registration Board of Tasmania: Wallace Wilkinson & Webster

Judgment Number: [2009] TASSC 76

IN THE MATTER OF THE PSYCHOLOGISTS REGISTRATION ACT 2000

1 The Psychologists Registration Board of Tasmania has applied for an indemnity certificate pursuant to the Appeal Costs Fund Act 1968, s8(1)(b). The background to the application is as follows. In October 2008 the Board suspended the registration of a psychologist, and made other disciplinary orders relating to him, pursuant to the Psychologists Registration Act 2000, s50. The psychologist appealed. On 28 August 2009 I allowed the appeal, quashed the Board's orders, remitted the matter to the Board with directions for rehearing, and ordered the Board to pay the appellant's costs of the appeal. It was at that stage that the present application was made by counsel for the Board.

2 The Appeal Costs Fund Act, s8(1)(b), provides that, where an appeal to this Court from a decision of "a Board ... from whose decision there is an appeal to a superior court" succeeds, this Court may grant to "the respondent to the appeal" an indemnity certificate in respect of the appeal.

3 The proceedings before me were not proceedings between parties: Fernando v Medical Complaints Tribunal [2007] TASSC 44; (2007) 16 Tas R 237 at 240. However the Board was represented by counsel at the hearing of the appeal. It took on the role of a contradictor, and sought to have its decision upheld by this Court. In those circumstances, I accept that it was a "respondent" for the purposes of the Appeal Costs Fund Act. That Act applies to all sorts of appeal-like procedures, and it would therefore be wrong to adopt a narrow interpretation of the word "respondent".

4 However the present situation is unusual, in that the Board is not just an unsuccessful litigant, but also the decision-making body whose decision has been quashed because of errors. This does not appear to be the sort of situation that Parliament had in mind when it enacted the Appeal Costs Fund Act. The purpose of that Act was explained by Burbury CJ in Tasmanian Pulp and Forest Holdings Ltd v Woodhall Ltd [1972] Tas SR 41 at 43, as follows:

"The general purpose of the statute no doubt is to cast the burden of legal costs incurred by an unsuccessful respondent to an appeal onto litigants generally (through the statutory levies made on their originating process) where through no fault of such a respondent the lower court, in which he succeeded, has gone wrong in law and that error is corrected on appeal. The legislature has apparently adopted the view that this risk of litigation (ie the risk of a judge or magistrate erring in law) being a common risk to all litigants, it is just that the cost of correcting such errors in law (so far as the fund extends) should be borne by all litigants."

The Act has subsequently been amended so that an indemnity certificate is available whenever an appeal succeeds, whether as a result of an error in law or otherwise.

5 Although the present situation was probably not a situation that Parliament had in mind, I think it is clear that the Court has the power to grant an indemnity certificate to a respondent that is also a board that has been successfully appealed from.

6 In such a situation, the fact that the board's error or errors necessitated the appeal will, at least sometimes, be a powerful factor weighing against the granting of an indemnity certificate. Some errors are more forgivable than others. If a board consisting predominantly of psychologists were to make a mistake in relation to a difficult question of statutory interpretation, for example, that would obviously be a situation where granting an indemnity certificate would be appropriate. But in this case the appeal succeeded because of a lack of procedural fairness and a failure to give sufficient reasons: Re a Psychologist [2009] TASSC 70. The procedural fairness problem would not have occurred but for a failure of the Board to realise at the outset that its own by-laws, known as the Psychologists Code, did not exist at the time of the complaint that it was dealing with.

7 In those circumstances, I do not think this is an appropriate case for an indemnity certificate to be granted. The application is refused.