Veterinary Surgeons Board of Queensland v Hitchcock [2026] QCAT 88

[3] The matter was referred by the Board to this Tribunal. The referral was mandated by Dr Hitchcock's electing to have the matter referred to the Tribunal in accordance with s 22B of the Veterinary Surgeons Act 1936 (Qld) ("VS Act").

[4] The substantive matter was determined in Dr Hitchcock's favour by the Tribunal constituted by me with Members Dr Grigg and Dr Baxendell.

[5] The question of costs was left to further submissions and has been referred to me to determine on the papers.

[6] Submissions were received from Dr Hitchcock and the Board, and Dr Hitchcock in reply. In essence, Dr Hitchcock argues for his costs on the standard basis on the District Court scale, partly following the cause, partly because of evidentiary matters in his favour, and partly because of disadvantageous forensic decisions by the Board.

[7] The Board submits that no order should be made, submitting that none of the cost factors in s 15D of the VS Act or ss 100 and 102 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) ("QCAT Act") are made out. It submits that the Board's decision to investigate and refer at Dr Hitchcock's request was supported by expert evidence.

[8] The Board filed an affidavit with its costs submissions and submitted that a costs order would be detrimental to the Board and the profession as whole because of the Board's slender financial position and its being a public authority.[1]

[9] Dr Hitchcock submits that affordability is not determinative of costs and that there is no clarity as to the quantum should costs be ordered and therefore the slender surplus is no barrier on the evidence before the Tribunal.

[10] Dr Hitchcock treated a pup belonging to a long-term client who presented the animal in a pre-morbid state, likely suffering parvo virus. The animal died shortly after and the client complained to the Board. The Board investigated and alleged disciplinary breaches related to treatment of the animal and record keeping.

[11] The Tribunal found that Dr Hitchcock's conduct did not amount to misconduct in a professional respect. In some regards, the Tribunal found Dr Hitchcock had competently and professionally managed the presentation before him; in other regards, that there was no utility in a normative or idealised treatment approach as the animal was in rapid decline and the client financially and emotionally unable or unwilling to implement recommended treatments. The Tribunal observed that deficiencies in record keeping related to case management and did not amount to professional misconduct: they were case specific.

[12] The Board intended to call the complainant client and counsel for Dr Hitchcock required her for cross-examination. In the event, it was not possible for her to attend in person or by video but only by telephone, no adequate arrangements having been made for personal or video appearance. Leave to appear by telephone was not sought until the day before hearing, inevitably meaning it would be considered on the day of hearing. Ultimately the Board did not call her.

[13] As the Tribunal noted in the 2025 decision at [20], her evidence was not crucial to the disciplinary question as it went to matters of informed consent to treatment. However, Dr Hitchcock submits that considerable legal effort was expended in anticipation of having to deal with the application to appear by telephone, cross-examination, and to respond to her evidence.

[14] The Tribunal is empowered to make costs orders by:

(a) s 100 QCAT Act:

1. Each party usually bears own costs

Other than as provided under this Act or an enabling Act, each party to a proceeding must bear the party's own costs for the proceeding.

(b) s 102 QCAT Act:

1. Costs against party in interests of justice

(1) The tribunal may make an order requiring a party to a proceeding to pay all or a stated part of the costs of another party to the proceeding if the tribunal considers the interests of justice require it to make the order.

(3) In deciding whether to award costs under subsection (1) or (2) the tribunal may have regard to the following -

(a) whether a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including as mentioned in section 48(1)(a) to (g);[2]

(b) the nature and complexity of the dispute the subject of the proceeding;

(c) the relative strengths of the claims made by each of the parties to the proceeding;

(d) for a proceeding for the review of a reviewable decision -

(i) whether the applicant was afforded natural justice by the decision-maker for the decision; and

(ii) whether the applicant genuinely attempted to enable and help the decision-maker to make the decision on the merits;

(e) the financial circumstances of the parties to the proceeding;

(f) anything else the tribunal considers relevant.

(c) s 15D VS Act:

(1) In a proceeding before it, the tribunal may make any decision about costs it considers appropriate.

(2) However, the costs allowable are only -

(a) the costs allowable under the QCAT Act; and

(b) if the board conducted an investigation of a matter before referring the matter for hearing by the tribunal - the cost to the board of conducting the investigation.

(3) Without limiting subsection (1), in making a decision about an order for costs, the tribunal -

(a) must take into consideration the cost of any investigation for the matter the subject of the proceeding; and

(b) must not take into consideration the amount of a penalty, if any, imposed on a veterinary surgeon in the proceeding.

[15] Costs in these matters do not necessarily follow the event.[3] The Tribunal is charged with making costs orders it considers appropriate (VS Act s 15D(1)) subject to the costs provisions of the QCAT Act (here, ss 100 and 102), considering the interests of justice.

[16] Notably there are no precedents where a veterinarian has required referral of a matter to QCAT and succeeded.[4]

[17] The term 'interests of justice' was considered in Veterinary Surgeons Board of Queensland v McIntosh[5] in the following terms:

[9] In exercising the jurisdiction to make a costs order in this Tribunal, the interests of justice remain a valid basis upon which the discretion ought be exercised under section 15D. Also the broad power must still be exercised judicially, not upon irrelevant or extraneous considerations but upon acts connected with or leading up to the hearing. This would include the financial circumstances of the parties. The Board's submissions are generally confined to relevant matters.

[18] The interplay between ss 100 and 102 of the QCAT Act was considered by the Queensland Court of Appeal in Health Ombudsman v du Toit,[6] resolving previously competing interpretations. The effect of that case was neatly summarised by Senior Member Aughterson as follows (footnote omitted):

[11] In Health Ombudsman v du Toit, the Court of Appeal rejected the proposition that s 100 of the QCAT Act provided for a 'strong contra-indication against costs' and held that the focus should be on what is in the interests of justice as provided for in s 102 of the QCAT Act.[7]

[19] The Board argues in its written submissions on costs at [96] that:

none of the factors in section 102(1) of the QCAT Act support it being in the interests of justice to make an order for costs in favour of Dr Hitchcock. In fact, the Board submits they favour making an order that the parties bear their own costs of the proceeding.

[20] The statutory factors stated in s 102(3) are reviewed below, and my conclusion is that the interests of justice are served by a costs order in Dr Hitchcock's favour.

[21] Dr Hitchcock submitted that the failure of the Respondent to produce the complainant as its witness and then to abandon at hearing its reliance on that witness, unnecessarily disadvantaged him. The 2025 decision's acceptance of that abandonment was based in part on the narrow utility the Tribunal saw in the client's potential testimony. It is certainly true that Dr Hitchcock must have incurred costs in preparing to meet the evidence. Dr Hitchcock also points out that the Board did not offer evidence about all allegations in the initiating referral.[8] These forensic decisions operated to Dr Hitchcock's disadvantage.

[22] The Board's written submission on costs at [26]-[27] say that referral to the Tribunal at Dr Hitchcock's election necessarily increased costs beyond those had the matter been determined at the Board meeting on 10 March 2023.[9]

[23] Those submissions appear to invite an inference of unnecessary disadvantage and that legal costs might have been avoided had Dr Hitchcock not exercised his rights. Dr Hitchcock's exercise of his statutory right cannot, in my opinion, bear against Dr Hitchcock in considering the interests of justice. The right to elect is integral to the scheme of the Act as is the right of the Board to refer a matter of its own motion.[10]

[24] The factual matrix of the dispute is straightforward and summarised above.

[25] Any complication in the 2025 decision lies in deficiencies of practice or record keeping not rising to misconduct in a professional respect. As discussed below this is about nuanced understanding of regulatory obligations rather than complex disputation.

[26] The expert witness' testimony was relied upon by the Board as supporting its contention of professional misconduct. The contentions were of both professional treatment and record keeping. The Tribunal held the deficiencies did not amount to professional misconduct but were incidents of the particular case. Further, the expert testimony arose in the conduct of the case not in the early decisions of the Board that ultimately led to the hearing.

[27] The standard applied by the Tribunal is well understood in law generally and explicitly in the context of veterinary discipline, as stated in the 2025 decision.

[28] The Board argues it had before it a prima facie case meaning it should proceed with disciplinary action. The fact that the Tribunal found to the contrary necessarily reflects on that conclusion.

[29] Disciplinary proceedings under the VS Act are binary in nature. The Board may only take action if it is of the opinion a veterinary surgeon has engaged in misconduct in a professional respect.[11] This opinion is a jurisdictional fact.

[30] The complaint led the Board to conclude it should progress the matter, its main power being investigation under s 22 of the VS Act. Investigations led the Board to take the steps of giving notice required by s 22B, which is enlivened by the Board forming a further opinion, that "there is sufficient evidence available with which to establish a prima facie case of misconduct in a professional respect against a veterinary surgeon": s 22(3).

[31] Conduct might be sub-optimal in a particular instance yet not reach the high bar required for misconduct in a professional respect. The Code of professional conduct published by the Board affords examples that might be less than hoped for but not reach the high bar: response to a complaint not being "prompt"; "teamwork", an incidence of professional competence, lacking. Absent an opinion of misconduct in a professional respect and the opinion of a prima facie case, the Board has no formal authority.

[32] Dr Hitchcock's claim was ultimately successful on the basis that the Tribunal was satisfied his management of the particular case and his keeping of records in the circumstances, despite any technical deficiency, did not amount to misconduct in a professional respect.[12]

[33] The relative strength of the parties' cases is reflected in the Tribunal's decision that Dr Hitchcock did not engage in misconduct in a professional respect, even with the expert testimony (discussed below).

[34] The Board argues it has limited means. Affordability on the Board's part cannot fully answer a successful registrant's costs application. Section 15(2A) of the VS Act appears apposite, appropriating from the consolidated fund monies as decided by the Governor in Council to make up any shortfall. Even absent that apparently unique provision,[13] the Board is not above the clear intent of the relevant statutory costs provisions.

[35] Further, ill-considered disciplinary investigations might be ruinous of an otherwise blameless veterinarian. The risk of costs to the Board acts as a brake against investigation and notice-giving in circumstances that might not warrant high level proceedings and against a predilection to pursue every matter, despite the discretions vested in the Board.[14]

[36] Dr Hitchcock made no submissions as to his financial circumstances.

[37] The parties have not quantified costs, but as Dr Hitchcock submits, the Board's costs submissions and evidence in this regard are little more than assertions.[15]

...the Board as a regulatory body has limited resources and a financial burden of bringing disciplinary proceedings. It is in the public interest that if the allegations are successful the offending registrant... should meet or at least contribute to the costs incurred in bringing the proceedings.[16]

[39] The corollary seems obvious: there is public interest (including the interests of justice) in costs being considered against the regulator in unsuccessful disciplinary proceedings.[17]

[40] Costs should not have a "chilling effect" on the Board's discharge of its duties that include, by implication, strong public interest protection elements.[18]

[41] Again, there is a corollary: legal costs should not have a chilling effect on registrants exercising their rights to challenge or test disciplinary decisions.[19]

[42] In this case, I am satisfied that the costs outcome ordered is proportionate, reasonable and despite any financial implications for the Board, any "chilling effect" is far outweighed by the interests of justice.

[43] On a final note, in Kitchen v Quinlivan (No 3),[20] Treston J sounds cautionary notes for regulators to attend closely to the source of, and conditions precedent to exercising disciplinary power. A narrow technical response might lead the Board away from the nuanced analysis demanded of it for highly consequential decisions.

[44] I note the Applicant's submission on costs includes the following:

[59] The Board submits the unique and unforeseeable circumstance of the Tribunal making a finding contrary to the expert evidence supports making an order that the parties bear their own costs.

[45] The Tribunal is charged with making its own decision to judicial standards.[21] Abrogating factual findings to experts is contrary to that duty: a reasoned finding contrary to an expert's opinion is not "unique and unforeseeable". In this instance the Tribunal found that Dr Hitchcock answered the salient expert points in his evidence and submissions.

[46] The Tribunal is unpersuaded by this argument.

(a) there is nothing before me indicating that Dr Hitchcock's conduct of the proceedings warrants reduction in the costs;

(b) there is nothing in the constitution of the Board as a statutory authority or its exercise of the statutory referral obligation that warrants reduction of the costs.[22]

[48] A costs order is required in the interests of justice.

[49] The Veterinary Surgeons Board of Queensland must pay Dr Nathan Keith Henry Hitchcock's costs of and incidental to these proceedings on a standard basis in accordance with the District Court Scale of Costs.

[50] If the amount of costs is not agreed between the parties within 14 days, the costs are to be assessed by way of short form assessment by a costs assessor appointed by the Principal Registrar to be paid for by the Veterinary Surgeons Board of Queensland.

[51] The Veterinary Surgeons Board of Queensland is to pay Dr Hitchcock's costs as agreed or assessed within 14 days of such agreement or assessment.

[1] Affidavit of Ms V. Mustafay, Registrar of the Board dated 11 July 2025 ("Mustafay affidavit"); Applicant's Written Submissions as to Costs [60]-[68].

[2] QCAT Act s 48 headed "Dismissing, striking out or deciding if party causing disadvantage" is not relevant here.

[3] Veterinary Surgeons Board of Queensland v McIntosh [2011] QCAT 417, [8].

[4] Applicant's Written Submissions as to Costs [69].

[5] [2011] QCAT 417, [9] (footnote omitted).

[6] [2024] QCA 235.

[7] Browne v Osterman [2025] QCATA 25, [11].

[8] Respondent's Submissions as to Costs [18]-[25].

[10] VS Act ss 22(3)-(4), 22A(1) chapeau, 22B(1)(b)(iii), 22B(4), 15A(a), 15D(2)(b).

[12] Disciplinary sanctions ordered by the Board or the Tribunal are discretionary: ss. 22A headed "Board may take disciplinary action"; and 22E(1): "If the tribunal decides a veterinary surgeon has engaged in misconduct in a professional respect, it may ...". It is entirely possible that in the circumstances of a case it is proper for no sanction to be ordered despite the jurisdictional facts being established.

[13] This appropriation power seems unique to the VS Act, no similar provision appearing in the Queensland statute book.

[14] VS Act pt 4 div 2. See also Kitchen v Quinlivan (No 3) [2025] QSC 351.

[15] Respondent's Further Submissions as to Costs [9]-[12].

[16] Medical Board of Western Australia v Roberman [2005] WASAT 118, [30] adopted Veterinary Surgeons Board v Griffin [2017] QCAT 93, [69], [71].

[17] See, eg, Brisbane Marine Pilots Pty Ltd (in liquidation) v General Manager of Maritime Safety Queensland, Department of Transport and Main Roads and Ors [2022] QCAT 225, [86]-[125].

[18] Health Ombudsman v du Toit [2024] QCA 235; Holgar v Chief Executive, Department of Justice and Attorney-General & Ors [2022] QCATA 27; Valuers Registration Board v Murphy (No. 2) [2019] QCAT 332; Queensland Racing Integrity Commission v Vale [2017] QCATA 110, [13]-[41].

[19] See Watego v State of Queensland and ors [2023] QCAT 292, an anti-discrimination case where costs against the unsuccessful applicant were capped to contain any chilling effect.

[20] [2025] QSC 351. This was a rare finding of misfeasance in public office by the Director of the Professional Services Review Agency (an independent statutory officer who reviews potential inappropriate practice by health practitioners).

[22] Health Ombudsman v du Toit [2024] QCA 235; Medical Board of Australia v Wong [2017] QCA 42.