Rush v Medical Board of Australia

3. Section 40 of the Health Practitioner Tribunal Act 2010 (the HPT Act) relevantly provides:

(1) Except as provided under this Act, the National Law or a referring Act, each party to proceedings under this Act must bear the party's own costs in the proceedings. > > (2) The Tribunal may order a party to proceedings to pay all the costs, or a part of the costs specified in the order, of another party to the proceedings if the Tribunal considers that it is in the interests of justice to do so. > > (3) In deciding whether to award costs in proceedings, the Tribunal is to take into account - > > (a) whether a party to the proceedings has behaved in a way that has unnecessarily disadvantaged another party to the proceedings; and > > (b) the nature and complexity of the proceedings; and > > (c) the relative strengths of the claims made by the parties in the proceedings; and > > (d) if the proceedings are for review of a decision - > > (i) whether the applicant was accorded procedural fairness by the person who made the decision; and > > (ii) whether the applicant genuinely attempted to enable, and assist, to make the decision, the person who made the decision; and > > (e) the financial circumstances of the parties to the proceedings; and > > (f) any other matter the Tribunal thinks relevant.

4. The Tasmanian Civil and Administrative Tribunal (TASCAT) is the responsible Tribunal to hear proceedings under the National Law in Tasmania. Before TASCAT was established, the responsible Tribunal was the Tasmanian Health Practitioners Tribunal (the HPT).
5. The Tasmanian Civil and Administrative Tribunal Act 2020 (the TASCAT Act) also contains a provision relating to costs. Section 120 of the TASCAT Act relevantly provides:

(1) Unless otherwise specified in this Act, a relevant Act, regulations under a relevant Act or an order of the Tribunal under this section, parties bear their own costs in any proceedings before the Tribunal. > > (2) Unless otherwise specified in a relevant Act or regulations under a relevant Act, the Tribunal may make an order for the payment by a party to proceedings of all or any of the costs of another party to the proceedings, or of a person required to appear before the Tribunal or to produce evidentiary material, if the Tribunal considers that it is appropriate to do so after taking into account - > > (a) the main objectives of the Tribunal that are relevant to simplifying proceedings and issues before the Tribunal and to keeping costs to parties in proceedings to a minimum insofar as is just and appropriate; and > > (b) the need to ensure that proceedings are fair and that parties are not disadvantaged by proceedings that have little or no merit; and > > (c) any provision made by the Tribunal rules or the regulations under a relevant Act; and > > (d) any other matter considered relevant by the Tribunal. > > (3) Subsections (2) and (4) do not apply in relation to proceedings in the Mental Health stream or in the Guardianship stream. > > (4) Without limiting subsection (2), if the Tribunal dismisses or strikes out any proceedings in any prescribed circumstances, the Tribunal should also make an order for costs against the party against whom the action is directed, unless the Tribunal is of the opinion that there is a good reason for not making an order in the circumstances of the particular case. > > (5) if the Tribunal makes an order for the payment of costs and does not fix the amount of costs, that amount is to be assessed and settled in accordance with the Tribunal rules, or regulations under a relevant Act, that make provision in relation to such costs.

Section 120(2) and (4) of the Tasmanian Civil and Administrative Tribunal Act 2020 does not apply in relation to the costs of a party in proceedings under this Act.

7. Each of the National Law, the HPT Act and the TASCAT Act have provisions which deal with inconsistencies between different relevant Acts:
   • The National Law at s 203 provides 'this Division applies despite any provision to the contrary of the Act that establishes the responsible Tribunal but does not otherwise limit that Act'
   • Section 4(1) of the HPT Act provides 'in the event of any inconsistency between this Act (or the Tasmanian Civil and Administrative Tribunal Act 2020) and the National Law, the National Law prevails to the extent of the inconsistency'
   • Section 7A of the TASCAT Act provides "if there is an inconsistency between a provision of a relevant Act and a provision of this Act, the Regulations or the Tribunal Rules, the provision of the relevant Act prevails to the extent of the inconsistency' [1]
8. The National Law and the HPT Act are both 'relevant Acts' for the purposes of s 7A of the TASCAT Act.

1. The Board says that the provisions of s 120 of the TASCAT Act are displaced by s 201 of the National Law. The Board further says that s 201 of the National Law gives the Tribunal an unfettered discretion in relation to costs, and that where there is an unfettered discretion of that nature a successful party is generally entitled to their costs, absent some special or exceptional circumstances, including disentitling conduct on the part of the successful party.
2. In the alternative, the Board says that if the matters in s 120(2) of the TASCAT Act still have some application, those matters are consistent with an order being made awarding costs to the Board.
3. In that regard, the Board says that the following are matters that are relevant to the discretion to order costs under s120 of the TASCAT Act:

(a) The Board was wholly successful and therefore should not be required to bear its costs of proceeding. The Board says this is one of the most important considerations.

(b) The Board did not engage in any relevant 'disentitling conduct' in the course of the proceeding, which is the usual basis on which a successful party may be deprived of a costs order in their favour.

(c) The Board conducted itself appropriately throughout the proceeding and did not conduct itself in any way that delayed or lengthened the proceeding or increased the likely costs.

(d) The circumstance that Dr Rush was found to be not qualified to hold specialist registration for the purposes of s 58(1)(d) of the National Law was an important factor in the Tribunal's disposition of the matter, which was consistent with the Board's decision under review and its submission before the Tribunal.

(e) Prior to the hearing the Board drew Dr Rush's attention to an earlier decision of the Court of Appeal in Western Australia [2] which was part of the Tribunal's reasoning.

(f) As acknowledged by the Tribunal the proceeding involved a degree of complexity, and on that basis it was appropriate in the circumstances for the Board to incur legal costs.

(g) There was a public interest in the Board seeking to uphold its original decision to ensure that only suitable and eligible persons are registered as specialists under the National Law.

(h) The fact that the Board is in the nature of a public authority is not a relevant consideration that militates against a costs order in its favour. In any event the Board's funding is sourced from registration fees of other members of the profession who should not be subject to burdens arising from an unsuccessful appeal by a practitioner against a decision of the Board.

1. The Board's application for indemnity costs from 4 October 2023 is put on the following basis:

On 3 October 2023 the Board drew Dr Rush's attention to the decision of Hutt v Medical Board of Australia; Porter v Medical Board of Australia [2023] NSWCATOD 145 and made an offer (marked 'without prejudice save as to costs')[3] to resolve the matter on the basis that Dr Rush withdraw her appeal and each party pay their own costs. The Tribunal has determined Dr Rush's appeal consistently with the decision in Hutt. Had the offer been accepted, Dr Rush would have been in a better position than that which she is following the determination of her appeal. The Board incurred additional costs because Dr Rush did not accept its offer. Consistent with the usual principles, Dr Rush should pay the Board's costs on an indemnity basis from 4 October 2023 onwards.

1. Dr Rush says that an application for costs should be dismissed, and there should be no order for costs. Dr Rush notes that the previous practice of the HPT was that there would be no order for costs and the parties would bear their own costs. Dr Rush particularly says that the question of costs in this instance was only raised at the conclusion of the hearing, and Dr Rush ought to have been put on notice that the Board was likely to seek costs prior to that time.
2. Dr Rush's submission is that the National Law should be read in the context of the TASCAT Act.
3. Dr Rush refers to the decision of the Health Practitioners Tribunal ACT, Tasmania and Victoria Regional Board of the Psychology Board of Australia v Ms D. [2014] TASHPT 2 (Ms D) where the Tribunal held "this is not a jurisdiction where the ordinary civil proceedings rule that 'costs follow the event' applies", and proceeded to determine the costs application in that matter by reference to s 40 of the HPT Act.
4. Dr Rush's position is that the Tribunal should not proceed on the basis that there is a rule that costs follow the event in proceedings relating to health practitioner regulation under the National Law, and ought to have regard to s 120(2) of the TASCAT Act in considering the exercise of any discretion relating to costs.
5. Dr Rush says that the following matters are relevant to the exercise of the discretion to award costs under s 120 of the TASCAT Act:

(a) The case was reasonably arguable. It raised a relatively novel question of law, being the consequences of the decision to grant (renew) Dr Rush's specialist registration.

(b) The case was not trivial. It involved a change to the professional registration status of Dr Rush from that which had prevailed for the previous decade.

(c) The case was efficiently conducted and Dr Rush did not engage in any unreasonable conduct.

(d) The proceeding does not arise out of any wrongful conduct by Dr Rush, noting that the Board had expressed its gratitude to Dr Rush for her contribution to the profession, and acknowledged her years of service.

(e) Dr Rush was successful on one of her significant arguments which was contested by the Board, that her registration was not originally conferred in error.

(f) The outcome of the case turned on the exercise of a discretion and so was not governed by the factual circumstances of other cases and involved different facts.

(g) The Board failed to put Dr Rush on notice as to the nature of its application for costs. If foreshadowed that it might apply for costs in its responsive submissions at the end of April 2023 when it reserved the right to seek costs pursuant to s 120 of the TASCAT Act, at which time significant costs had already been expended. It is unfair for the Board to take the position that costs ought to follow the event under s 201 of the National Law without notice having been given. If the law is to be changed in this jurisdiction as to the usual outcome as to costs, a practitioner ought to be squarely put on notice that this would be sought by the Board.

1. In relation to the application for indemnity costs from 4 October 2023, Dr Rush says that it was not unreasonable for her to decline to withdraw her appeal after receiving the correspondence from the Board's solicitors on 3 October 2023. She says that the substantive written submissions and hearing had already concluded, and all significant costs had been incurred already. It was not unreasonable for Dr Rush to elect to await the reserved decision.

A decision about costs since the parties' submissions

1. At the time the parties' submissions into costs in these proceedings were received, this Tribunal had not previously considered the interaction between s 201 of the National Law and s 120 of the TASCAT Act. Nor had there been any consideration by either this Tribunal or the HPT of the interaction between s 201 of the National Law and s 40 of the HPT Act. The matter of Ms D is a case in point, where the costs provisions under the National Law were not referred to.
2. However, I have since considered the interaction between s 40 of the HPT Act and s 195 the National Law (which is expressed in the same terms as s 201 of the National Law) in Medical Board of Australia v Adams [2025] TASCAT 125 (Adams). In Adams I determined at [88]:

Where s 40(1) of the HPT Act is expressed to be subject to the exception of a provision of the National Law, s 195 of the National Law is the relevant provision under which the Board's costs application should be determined. The matters that the Tribunal is required to take into consideration under s 40(3) of the HPT Act when considering an award of costs are likely to be relevant to the discretion under s 195 of the National Law.

3. I also repeat my observation at [89] in Adams, that although an unfettered discretion in relation to costs may generally be considered to lead to a starting position that 'costs follow the event', this is not necessarily applicable to regulatory matters, as opposed to civil litigation.
4. In Adams, I also referred to Medical Radiation Practice Board of Australia v Lau [2025] VCAT 35 at [81 - 83] where the Tribunal accepted the principles relevant to the exercise of the discretion as to costs as being:
   • there is no presumption that each party will bear its own costs;
   • the National law confers a broad discretion on the Tribunal to award costs against a party;
   • although the Tribunal's broad discretion is unconstrained by the considerations set out in section 109(3) of the VCAT Act [which is expressed in similar terms to s 40 of the HPT Act] some or all of those considerations may be relevant in any given case;
   • the discretion is not 'at large' and must be exercised judicially, by reference only to considerations relevant to its exercise and upon facts connected with or leading up to the litigation;
   • the purpose of an order for costs is to indemnify or compensate the party in whose favour it is made and not to punish the party against whom it is made;
   • the discretion conferred under s 195 of the National Law does not equate to an expectation that costs will follow the event;
   • There may be cases where very serious allegations are found proven against a practitioner, but where an award of costs will still not be appropriately made, as all the circumstances of the case need to be considered.
5. In Adams, the parties did not make any submissions about the effect of s 120 of the TASCAT Act in relation to the application for costs. Section 120(1) of the TASCAT Act is essentially the same as s 40(1) of the HPT Act, and s 120(2) and s 120(4) of the TASCAT Act specifically do not apply to the costs of a party to these proceedings. The costs provisions under the TASCAT Act do not have any effect on the conclusions I reached in Adams about costs applications.

1. In support of its application for an award of costs on an indemnity basis, the Board refers to Colgate-Palmolive Company and Colgate-Palmolive Pty Ltd v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225[4] as an expression of the usual principles that apply to awards of costs on an indemnity basis:

... it is useful to note some of the circumstances which have been thought to warrant the exercise of the discretion. I instance the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud...; evidence of particular misconduct that causes loss of time to the Court and to other parties...; the fact that the proceedings were commenced or continued for some ulterior motive...; or in wilful disregard of known facts or clearly established law...; the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions...; an imprudent refusal of an offer to compromise... The question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis [citations omitted].

2. I do not consider there is any ground to make an award of costs on an indemnity basis as sought by the Board in the present case. In particular, I do not think it could be said that Dr Rush's rejection of the offer that she discontinue her appeal was an 'imprudent' refusal of an offer of compromise' in all the circumstances.

1. In this particular matter, I accept that neither party conducted themselves in any unreasonable fashion. It was appropriate for both parties to engage counsel to represent them. I was particularly indebted to both counsel who appeared in the substantive hearing for their assistance in identifying relevant issues and simplifying what was a complex historical factual matrix.
2. I said in Adams that the usual expectation, where there is an unfettered discretion to award costs, that costs would follow the event is not necessarily applicable in regulatory matters. However, I think the present proceedings are more like civil proceedings where that general rule would apply, as discussed in Latoudis v Casey [1990] HCA 59; (1970) 170 CLR 534 by McHugh J at [3] of his Honour's decision:

An order for costs indemnifies the successful party in litigious proceedings in respect of liability for professional fees and out-of-pocket expenses reasonably incurred in connection with the litigation...The rationale of the order is that it is just and reasonable that the party who has caused the other party to incur the costs of litigation should reimburse that party for the liability incurred. The order is not made to punish the unsuccessful party. Its function is compensatory. Thus, in civil proceedings an order may, and usually will, be made even though the unsuccessful party has nearly succeeded or has acted reasonably in commencing the proceedings.

3. I accept Dr Rush's submissions that, historically, costs orders have seldom been made in this jurisdiction since the commencement of the National Law:
4. Generally, in the early days following the adoption of the National Law in 2010, when the former Health Practitioners Tribunal made an adverse determination against a health practitioner, an order for costs was often made under the previous applicable legislation which made provision for a practitioner to pay the costs of the Tribunal's inquiry. See, for example, The Tasmanian Board of the Nursing & Midwifery Board of Australia v Katrina Wiggins [2011] TASHPT 5; The Tasmanian Board of the Medical Board of Australia v Ross Douglas Whittaker [2012] TASHPT 1.
5. Otherwise, in the vast majority of cases, costs orders appear to have been only made where there was agreement between the parties to that effect. See, for example, Pharmacy Board of Australia v Michael Francis Meaney [2017] TASHPT 1.
6. The usual situation appears to have involved there being no order for costs made at all at the conclusion of the proceeding: See, for example, Nursing and Midwifery Board of Australia v Naomi Erends [2020] TASHPT 4, or an order that each party bear their own costs - often by agreement. See, for example, The Tasmanian Board of the Nursing and Midwifery Board of Australia v Angela Shone [2012] TASHPT 2; Pharmacy Board of Australia v Clark [2025] TASCAT 68.
7. In the light of the historical practices in the former HPT, and more recently in what was the Health Practitioners Stream[5] of TASCAT relating to questions of costs, it was reasonable for Dr Rush to conduct these proceedings with an expectation that, whatever the outcome, it was likely that the parties would ultimately bear their own costs, absent a decision by the Tribunal that it was 'in the interests of justice', pursuant to s 40 of the HPT Act to decide otherwise: See ACT, Tasmania & Victoria Regional Board of the Psychology Board of Australia v Ms D [2014] TASHPT 2. In considering the matters relevant to the exercise of my discretion about costs, I give significant weight to this factor.
8. I consider it is appropriate in the present case that the parties each bear their own costs of the proceedings.

1. I make the following orders:
   1. The Board's application for an order that Dr Rush pay the Board's costs of the proceeding on an indemnity basis from 4 October 2024 is dismissed.
   2. The Board's application that Dr Rush pay the Board's costs of the proceeding on an ordinary basis up to and including 3 October 2024 is dismissed.

[1] 'Relevant Act' is defined in s 3 of the TASCAT Act to mean "an Act specified in Schedule 1 and any other Act that confers jurisdiction on the Tribunal".

[2] Arakkal v Medical Board of Australia [2017] WASCA 219.

[3] A copy of this correspondence was annexed to the Board's submissions

[4] Per Sheppard J at [24] citing Messiter v Hutchinson (1987) 10 NSWLR 525 and Maitland Hospital v Fisher (No. 2) (1992) 27 NSWLR 721 at 724

[5] Since 1 July 2025, the Occupational and Disciplinary Stream