There were 15 complaints, many having various particulars. Complaints 1 to 8B, referred to by the Tribunal as the "obstetric complaints" were, with one minor exception, all found not proven. Complaint 6 comprised 5 particulars. Particulars (a)-(d) were found not proven but particular (e) was found proved in part. Particular (e) was that: "In July 1987 the practitioner treated patient M and left the hospital without making proper arrangements for the further care of the patient (she then being in labour with augmentation)".

The Tribunal held: "In the background of the extensive retrospective audit of Dr McBride's practice, spanning ten years at three hospitals, proof of the particular should be viewed as a minor and isolated lapse and out of character with his normal practice. Ordinarily a complaint of this kind, if it were to be brought against a practitioner, would be referred to the Professional Standards Committee for inquiry and determination and not to the Medical Tribunal." ((3) Appeal Book, page 1.)

In respect of that particular the Tribunal ordered that Dr McBride be reprimanded for misconduct.

Complaints 9-15 were described by the Tribunal as "scientific fraud complaints". Each such complaint, except complaints 9 and 10, were found not proved.

Having made these findings upon the complaints, the Tribunal made the following orders for costs: "1. the Complainant is to pay the practitioner's costs of and incidental to the inquiry into Complaints 1-8B inclusive save and except the practitioner's costs of and incidental to the inquiry into Particular (e) of Complaint 6.

2. Each party to pay own costs of and incidental to the inquiry into Particular (e) of Complaint 6.

3. Costs under Order 1 to be assessed on the basis of indemnity costs in accordance with Supreme Court Practice under the costs rules of that Court and shall be paid by the Complainant when assessed and agreed and failing agreement when assessed by a taxing officer of the District Court of New South Wales and upon the issue of a certificate of assessment by the Deputy Chairman of this Tribunal in accordance with Regulation 27 under the Medical Practitioners Act. The assessment of costs is to include an allowance for the practitioner's attendances before the Inquiry of and incidental to the inquiry into the particulars of the obstetric complaints which were found not proved. The allowance should be in accordance with the allowance made and provided for expenses paid to expert medical witnesses in the Supreme Court. In assessing the costs the taxing officer may exercise the discretion of a taxing officer of the Supreme Court of New South Wales in the allowance of costs conferred by the Supreme Court Rules or by any Act having application in the assessment or taxation of costs in

the Supreme Court. If the practitioner has entered into a costs/fees agreement with his solicitor affecting the retainer the agreement may be given effect to by the taxing officer if same is approved and certified by the Deputy Chairman of the Tribunal.

4. Each party to pay own costs of and incidental of the inquiry into complaints 9-15 inclusive.

5. Liberty to apply to the Deputy Chairman under these costs orders." ((4) Appeal Book, Page 28-29.)

9. Mrs Walton, by a notice of cross-appeal, has raised five grounds of appeal, a sixth being abandoned. Those grounds of appeal are: "The Cross-Appellant appeals to the Court from that part of the decision of the Medical Tribunal delivered on 30 July 1993 making orders as to costs and in particular Orders number 3 and 4.

1. Insofar as order 3 required the Cross-Appellant to pay costs assessed on an indemnity basis, the Tribunal-

(a) erred in that it lacked power to make such an order;

(b) in the alternative to (a) if the Tribunal had such power, it erred in law in making such an order in the present case.

2. Insofar as Order 3 required costs to be paid by the Cross-Appellant to be assessed according to the Supreme Court Rules and Scale, the Tribunal-

(a) erred in that it had no power to make such an order;

(b) in the alternative, erred in law in making such an order in the circumstances of the present case.

3. Insofar as Order 3 required the Cross-Appeallant to pay the costs of the Respondent's attendance during the hearing, the Tribunal-

(a) erred in that it had no such power to make such an order,

(b) in the alternative, erred in law in making such an order in the circumstances of the present case.

4. Insofar as Order 3 requires that an assessment of costs be made by a taxing officer of the District Court, the Tribunal-

(a) erred in that it had no power to make such an order,

(b) in the alternative, erred in law in making such an order in the circumstances of the present case.

Insofar as Order provides authority for the Cross-Respondent to recover costs under a cost/fee agreement with his solicitor over and above costs otherwise recoverable as on a party and party taxation in the District Court, the Tribunal-

(a) erred in that it had no power to make such an order;

(b) in the alternative, erred in law in making such an order in the circumstances of the present case. ((5) Supplementary Appeal Book, page)

10. The cross-appellant seeks an order that Order 3 be set aside and that in lieu there of there be an order: "The Complainant pay the costs of the Respondent in relation to complaints 1-8B, such costs to be agreed or assessed by a Deputy Chairman of the Tribunal on a party and party basis in accordance with the District Court Special Scale".

THE POWER TO ORDER COSTS 11. It is useful to have regard to the history of the Act and regulations in relation to the power to award costs.

Under the Medical Practitioners Act 1938 there was created a disciplinary Tribunal ((6) Section 28.). A District Court judge was to be the Deputy Chairman. In respect of any inquiry which the Tribunal was to make it was provided that: "The Disciplinary Tribunal shall, in making an inquiry, sit in open court, and the registered person concerned shall be afforded an opportunity of defence either in person or by his solicitor or counsel.

The person who referred the complaint or charge shall unless exempted from attendance by the disciplinary Tribunal be present and may be represented by his solicitor or counsel at the inquiry." ((7) Section 28(6))

There was no specific provision permitting the making of an order of costs. Nor did the regulation making power confer a specific power to make regulations in relation to the awarding of costs ((8) Section 53 Medical Practitioners Act 1938.). For the purposes of conducting the inquiry the Disciplinary Tribunal and its Chairman had conferred "the powers authorities protections and immunities conferred by the Royal Commissions Act 1923-1934 on a Commissioner and the Chairman of the Commission respectively ..." ((9) Medical Practitioners Act 1938 s.28(8).). A Royal Commissioner under that Act did not have power to award costs except in respect of certain proceedings for an offence against the Royal Commission's Act ((10) Royal Commissions Act 1923-1934,s.24.).

In 1981 there was enacted the Medical Practitioners (Amendment) Act".((11) Number 55 of 1981) Pursuant to that Act, Medical Practitioners Regulations 1981 were proclaimed. By cl.23 provision was made for payment of members attending and sitting as the Disciplinary Tribunal. By cl.24 it was provided: "(1) A person who appears as a witness at any inquiry by the Board or at any sitting of the Disciplinary Tribunal shall be paid expenses by the Board in accordance with a scale set out in Table 3 to Schedule G to the Supreme Court Rules 1970.

(2) Sub-clause (1) does not apply to a person who is an officer or temporary employee of the Public Service or any other service of the State of New South Wales or a Commissioner or servant of the Commission."

No other provision was made in relation to costs.

In 1983, the Medical Practitioners (Amendment) Act ((12) Number 41 of 1993.) inserted s.53(1)(c 1) in the regulation making powers to permit the making of regulations: "Providing for the payment of costs in respect of the holding of an inquiry by the Disciplinary Tribunal".

In the second reading speech the Minister for Health, Mr Brereton, stated: "The amendments will also enable the disciplinary Tribunal to award costs against a doctor where the Tribunal finds the complaint to be proved. Currently the disciplinary Tribunal cannot award costs." ((13) Hansard 22 Much 1983, page 4857.)

The explanatory memorandum to the amending bill provided in cl.20, which inserted the regulation making power in respect of costs, as follows: "Extends the regulation making power so as to enable rules to be made whereby the disciplinary Tribunal may order certain legal costs to be paid by a person against whom it finds the subject matter of a complaint to have been proved and whereby the recovery of such costs may be expedited." ((14) Hansard 22 March 1983 page 4859.)(emphasis added)

Pursuant to the legislative power inserted by the 1983 amending Act, regulation 25 A was proclaimed operative from 10 February 1984. The regulation provided: "Costs 25A.(1) Where pursuant to section 29(1) of the Act the disciplinary tribunal finds the subject-matter of a complaint made against a person to have been proved, the disciplinary tribunal may order that person to pay such costs to the person who made the complaint as the disciplinary tribunal may determine.

(2) An order made under subclause (1) for a person to pay costs shall not take effect-

(a) subject to paragraph (b), until the expiration of a period of 21 days after notification, in the manner prescribed by clause 25, by the disciplinary tribunal to the person of the making of the order; or

(b) if within that period the person gives due notice of appeal to the Supreme Court against the finding referred to in subclause (1), until the finding is confirmed by the Supreme Court or the appeal is for any reason dismissed by the Supreme Court.

(3) Where an order made under subclause (1) has taken effect, the deputy chairman of the disciplinary tribunal shall, upon application by the person in whose favour the costs are allowed, issue a certificate setting out the terms of the order and stating that the order has taken effect.

(4) The person in whose favour costs are allowed may file the certificate referred to in subclause (3) in the District Court,

together with an affidavit by the person as to the amount of the costs unpaid, and the registrar of the District Court shall enter judgment for the amount unpaid together with any fees unpaid for filing the certificates."

The regulation accorded with the intention of the Minister as expressed in the Second Reading Speech.

However, regulation 25A was repealed with effect from 1 October 1987 and replaced with a regulation conferring upon the Tribunal a much wider power in relation to costs. That was regulation 27 which provided: "27(1) The Tribunal may order the complainant, if any, the registered medical practitioner concerned, or any other person granted leave to appear at any inquiry or appeal pursuant to s.32P(2) of the Act, to pay such costs to such person as the Tribunal may determine.

(2) Where an order made under sub-clause (1) has taken effect, the

Chairperson or Deputy Chairperson of the Tribunal shall, on application by the person in whose favour the costs are allowed, issue a certificate setting out the terms of the order and stating that the order has taken effect.

(3) The person in whose favour costs are allowed may file the certificate in the Distract Court together with an affidavit by the person as to the amount of the costs unpaid, and the registrar of the District Court shall enter judgment for the amount unpaid together with any fees paid for filing the certificate."

The Medical Practitioners (Amendment) Act 1938 was repealed by the Medical Practice Act 1992. The Medical Practice Act 1992 was assented to on 2 December 1992 and, except for s.6, was proclaimed to become operative from 1 July 1993 ((15) Government Gazette 25 June 1993.). The regulations proclaimed under the 1992 Act do not touch upon the question of costs ((16) See Medical Practice Act Regulations 1993 Government Gazette 25 June 1993; Medical Practice Art Rules No. 173 of 1994 Government Gazette 20 may 1994.). The repeal of the Medical Practitioners Act 1938 thus occurred on 1 July 1993 ((17) Medical Practice Act 1992 s.195.). There were transitional provisions contained in Schedule 5 to the Medical Practice Act 1992. Clause 11 of Schedule 5 provides: "(1) The provisions of the 1938 Act continue to apply to and in respect of a complaint made, or an inquiry or appeal commenced, under that Act and pending immediately before the repeal of that Act.

(2) Any order, decision or determination resulting from an inquiry or appeal to which this clause applies is taken to have been made under the corresponding provisions of this Act and is to have effect accordingly."

As the inquiry regarding the complaints had commenced under the 1938 Act, in consequence of cl.11(1) of Schedule 5 to the 1992 Act, the 1938 Act, including the regulation making power and thus regulations made pursuant to itrelevantly regulation 27 - continued in force for the purpose of the inquiry.

By s.161 Medical Practice Act 1992, Schedule 2 applies to an inquiry conducted by the Tribunal under that act. Clause 13 of Schedule 2 provides: "13(1) the Tribunal may order the complainant, if any, the registered medical practitioner concerned, or any other person granted leave to appear at any inquiry or appeal before the Tribunal to pay such costs to such person as the Tribunal may determine.

(2) When an order for costs has taken effect, the Tribunal is, on application by the person to whom the costs have been awarded, to

issue a certificate setting out the terms of the order and stating that the order has taken effect.

(3) The person is whose favour costs are awarded may file the certificate in the District Court, together with an affidavit by the person has to the amount of the costs unpaid, and the registrar of the District Court is to enter judgment for the amount unpaid together with any fees paid for filing the certificate."

The legislature has thus enacted as part of the statute the cost making power previously conferred by regulation. No comment was made upon that provision in the second reading speech ((18) Hansard 24 September 1992 page 6499.).

The power conferred by the regulation, and now the Act, is in plenary terms conferring upon the Tribunal power to make orders for costs against or in favour of not only the registered medical practitioner concerned, but also the complainant or other persons granted leave to appear. The nature of the costs which may be so awarded is not, at least in express terms, limited to legal costs.

INTERPRETATION OF THE COSTS POWER 27. The cross-appellant contended that the legislative power inserted as s.53(1)(c

1. Medical Practitioners Act 1938 to make regulations "providing for the payment of costs in respect of the holding of an inquiry by the Disciplinary Tribunal", and regulation 27 enacted pursuant to that power to make orders "to pay such costs to such person as the Tribunal may determine", was not a plenary power. Each power was said to be restricted in two ways. First, "costs" or "such costs" was restricted to legal costs, or more precisely, such costs as might normally be permitted to be recovered pursuant to costs orders made by a court of law either in accordance with an inherent power, or more usually pursuant to a statutory or rule power. Second, the power was further restricted to prohibit the awarding of indemnity costs.

It is apparent that neither restriction is found in the terms of s.53(1)(c 1) Medical Practitioners Act 1938, nor in regulation 27. Nor is there any indication found in either the Act or the regulations suggesting either restriction. One basis only for the argument restricting the costs power was advanced. It was that, absent any statutory definition of "costs", the term should be given its generally accepted meaning at the time of the enactment of that expression by the 1981 Amending Act and the 1987 regulations. It was argued that the term "costs" should be interpreted to refer only to "remuneration for the exercise of professional legal skill" ((19) Submissions, paragraph 2.2.). Support for this interpretation was said to be found in the decisions of Samuels JA in Cachia v Isaacs ((20) (unreported Court of Appeal, 23 March 1989).), of Handley JA in Cachia v Hanes ((21) (1993) 23 NSWLR 304 at 317.), and ultimately in the decision of the High Court in Cachia v Hanes ((22) [1994] HCA 14; (1994) 68 ALJR 374 in particular the judgment of the majority at 379.).

Although I understood Mr Basten QC, Senior Counsel for the cross-appellant to accept that the Medical Tribunal was not a court ((23) Transcript page 7-9.), nonetheless reliance was placed upon the judgment of McHugh JA in Australian Postal Commission v Doa (No.2) ((24) (1986) 6 NSWLR 497 at 515.).

The question of whether the Medical Tribunal is a court may be of some importance. If it is not, there is no apparent reason for restricting any costs power to legal costs as courts customarily do, and as the legislative and rule powers of courts customarily require. Further, if the Tribunal is not a court, the learning relating to the history of the manner in which courts have customarily interpreted powers in relation to costs becomes, if not entirely irrelevant, peripheral.

In Australian Postal Commission, McHugh JA was concerned with whether the Equal Opportunity Tribunal was a court "for the purpose of the Suitor's Fund Act 1951" ((25) (1986) 6 NSWLR at 515A). As McHugh JA said: "The question has to be determined in the context and with regard to the purpose of the Act" ((26) (1986) 6 NSWLR at 515.)

His Honour regarded the Suitor's Fund Act as remedial legislation which should accordingly be given a beneficial construction, and thus: "The word "court" should be given a liberal and beneficial construction to accord with the purpose and policy of the Act. The correct approach is for the court to ask itself whether, bearing in mind the general purpose of the Suitor's Fund Act, Parliament must be taken to have intended that the Tribunal should qualify as a court? I think that the question should be answered in the affirmative.

Whether the Tribunal is a "court" for purposes other than the Act is beside the point. What matters for the purpose of the Suitor's Fund Act is that a body which determines rights and which is presided over by a judge of the District Court has made an error of law which has been corrected on appeal to the Supreme Court of New South Wales. To grant a certificate, at the request of the

respondents, is to promote the purpose of the Act. To hold that the Tribunal is a "court" for the purpose of the Act contradicts no express or implied provision of the Act. The Court should, therefore, declare that the respondents are entitled to a

Here there is no statutory use of the expression "court" which requires to be interpreted. One comes to the question whether the Tribunal is a court in this instance only as a preliminary to considering whether, if it be so, that assists in determining whether the otherwise unrestricted expressions "cost" and "such costs" where used in the Act and regulation should be restricted to legal costs. Further, the approach of giving the expression "court" a wide interpretation where used in the Suitor's Fund Act because that would advance the object of that remedial legislation is here absent. Indeed contrary considerations apply. The cross-appellant seeks to give the expression "court" a wide interpretation, not for enhancing rights but rather for restricting the rights, and powers pursuant to which they are conferred, so as to disentitle the medical practitioner to recover costs incurred by him in rebutting, here successfully, complaints brought against him by the cross-appellant. If concepts of statutory interpretation have any materiality in considering whether the Tribunal is a court for such a purpose, and I do not think that they do, such concepts would lead to a restrictive rather than a wider interpretation of the expression "courts" where the purpose of interpreting the expression is to restrict rights of a person affected by such interpretation.

In Australian Postal Commission, Kirby P noted, correctly in my view, that: "It is important to confine the determination of whether the Tribunal is a "court, to the question here in issue under the Suitor's Fund Act It is unnecessary, and it would be unfortunate, to determine in this costs application the large question of the whether the Tribunal is a court for the purposes of the Constitution and Federal legislation." ((27) (1986) 6 NSWLR 512-513.)

I do not think it is either necessary or desirable in these proceedings to express a concluded view whether the Medical Tribunal is a court. It is sufficient for the purposes of considering the complainant's submission that "costs" where used in the Act and regulations is restricted in the two manners indicated to recognise that some functions of the Tribunal, and some obligations upon the Tribunal as to the manner in which it must act, are analogous with or similar to those exercised by courts. However it must also be recognised that there are no rules of the Tribunal regulating the nature or quantum of costs which may be ordered to be paid as there are under rules of court.

The nature and functions of proceedings before the Medical Tribunal which render it similar to a court include the circumstance that it is presided over by a District Court judge whose rulings on law are the decision of the Tribunal ((28) Section 32T(1).). The proceedings, in fact, are usually conducted as adversary proceedings. They normally follow the forms of procedure commonly adopted in courts. The proceedings before the Tribunal may result from a complaint by the secretary or his delegate and, in that sense, the complainant has the obligation of establishing the complaint. The Tribunal has significant powers of punishment including directing that a person's name be removed from the register ((29) Section 42R.). Rights of appeal to the Supreme Court are given to either the complainant or the person about whom a complaint is made on a question of law, or upon the exercise of the power under s.32R.

On the other hand the Tribunal comprises, in addition to the District Court judge, up to three medical practitioners ((30) Section 32M(3).). Those persons are not assessors assisting the Deputy Chairperson; they are full decision making members of the Tribunal. The Tribunal is not obliged to observe the rules of law governing the admission of evidence but may inform itself of any matter in such manner as it thinks fit ((31) Medical Practitioners Act 1938 Schedule 4 cl.1.). The Tribunal may conduct the proceedings as it thinks fit ((32) Section 32O(3)(b).). Section 32O makes clear that the function of the Tribunal is to "conduct an inquiry into any complaint, matter or application": that is a function different from normal court functions. And most importantly, there are no Tribunal rules restricting costs which may be awarded either by reference to subject matter or quantum.

In my view such similarities as exist between the nature and functions of the Medical Tribunal and the courts ((33) For a consideration of the nature of courts and their functions see R v Trade Practices Tribunal and Anor; Ex parte Tasmanian Breweries Pry Limited [1970] HCA 8; (1970) 123 CLR 361 at 373-374 per Kitto J; Re: Ludeke and Ors: Ex parte Australian Building Construction Employees and Builders Labours Federation and Anor (No.2) (1985) 60 ALJR 98 at 105.) are insufficient to cause the unconfined expression "costs" where used in the Act and regulations to be restricted to legal costs. Such similarities do not, in my view, lead to the view that the intention of the legislature or executive in enacting and proclaiming s.53(1)(c 1) and regulation 27 intended that only "legal costs" were permitted to be ordered, or that such costs should be restricted to prohibit the awarding of indemnity costs.

The complainant placed strong reliance upon the judgment of the High Court in Cachia v Hanes ((34) [1994] HCA 14; (1994) 68 ALJR 374.). That case was concerned with whether a non-legal successful litigant who appeared in person could recover monies for the loss of his time spent in preparation and conduct of his case and for out of pocket expenses, being travelling expenses associated with the preparation and conduct of his case. Those sums were sought in his bill of costs and disallowed. The claimant was a self employed consulting engineer. The claim was brought within Part 52 Supreme Court Rules 1970 made in pursuance of s.76(1) Supreme Court Act 1970. The High Court held that such "costs" were irrecoverable.

The majority judgment noted: "It is fundamental to the appellant's argument that the time he lost in preparing and conducting his case constitutes "costs" within the meaning of this rule. He is, however, unable to sustain that proposition. The "costs" provided for in the Rules do not include time spent by a litigant who is not a lawyer in preparing and conducting his case. They are confined to money paid or liabilities incurred for professional legal services. It is only in that sense that the Rules speak of "costs" ((35) (1994) 69 ALJR at 375.).(emphasis added)

Later their Honours said: "To use the Rules to compensate a litigant in person for time lost would cut across their clear intent. Costs, within the meaning of the Rules, are reimbursement for work done or expenses incurred by a practitioner or practitioner's employee. Compensation for the loss of time for a litigant in person cannot be said to constitute costs within the meaning of the Rules." ((36) (1994) 68 ALJR 376.) (emphasis added)

The history of the awarding of costs by courts pursuant to statutes since the Statute of Gloucester in 1278, and rules pursuant to such acts, were traced. The anomalous exception to the rule allowing a solicitor acting for himself in litigation to recover costs although he was a litigant in person was noted. The majority concluded as follows: "We should add that the English legislation and rules represent a straight forward approach to the problem, in contrast to the approach adopted in some cases where courts have treated the loss in earnings of a litigant incurred in the course of the presentation or conduct of his case as a disbursement. Clearly, that is merely an indirect way of recompensing a litigant for time spent in the preparation or conduct of his case which, if it is not contemplated by the relevant legislation or role, is not permissible. Of course, a litigant who qualifies as a witness is entitled to the ordinary witnesses, fees." ((37) (199) 68 ALJR at 379.) (emphasis added)

Cachia v Hanes, and all of the cases considered in that judgment, were concerned with the construction of the definition of "costs" in statutes or rules of court. The particular case was concerned with s.76(2) Supreme Court Act which defined "costs" to include "costs of and incidental to proceedings in the court", although, as the High Court noted, "a definition of "costs" as including "fees, charges, disbursements, expenses and remuneration" is provided by s.19(1)" ((38) (1994) 68 ALJR 375.). Further, Part 52 rule 23(1) there being considered provided that, save for immaterial exceptions, "costs shall be taxed on a party and party basis". Rule 2(2) provides: "On a taxation on a party and party basis there shall be allowed all such costs as were necessary or proper for the attainment of justice or for enforcing or defending the rights of the party whose costs are being taxed."

In my view the expression "costs" where used in s.76 and Part 52 Supreme Court Act and Rules is restricted by the expressions which I have quoted.

There are no such restrictions in either the Medical Practitioners Act 1938 or the regulations thereunder. Whilst Cachia v Hanes is definitive of the law regarding recovery of "costs" as defined in statutes and rules similar to those of the Supreme Court, in my view it is not to be extended to determine the meaning attributable to "costs" where that expression is used by the legislature, or in regulations, which are not constrained by the restrictions imposed by the definition in s.76 Supreme Court Act, and Part 52 of the Rules. Particularly is that so where the regulations which I am considering impose a power to order the payment of "such costs to such person as the Tribunal may determine".

Senior Counsel for the cross-appellant was unable to point to any authority not involving a consideration of a statute or rule which contained restrictive provisions, such as those in the Supreme Court Act and rules, where the expression "costs" or "such costs" had been interpreted as being limited in the manner contended for in this case.

In my view the similarities between some of the functions and procedures performed by the Tribunal to those performed by courts are not sufficient to permit the distiling of a legislative intention that in using the word "costs" in the Medical Practitioners Act 1938, and regulations thereunder, only such costs as would be recoverable were the Tribunal a court of law with attendant cost making powers restricted both by statute and rules, was conferred upon the Tribunal. Had that been the intention it would be expected that the legislature would have used an expression more restrictive than either "costs" or "such costs", and would have either referred to or created an appropriate rule structure so restricting the power. It did neither.

In my view "costs" is not to be restricted to "legal costs and disbursements". The second restriction sought to be imposed by the cross-appellant upon the meaning of costs was that, assuming costs is restricted to legal costs, it is further restricted so as to exclude indemnity costs, and the power to award them. I do not accept that submission. I see no reason to read "costs" or "such costs" as meaning "only those legal costs recoverable pursuant to rules of court and excluding indemnity costs". As I have said, there is no prescribed scale to which one can refer to determine which costs are included or excluded: accordingly there is no basis for saying that any such scale would exclude indemnity costs.

Five different categories of costs had long been recognised in the law and were summarised by Sir Robert Megarry VC in EMI Records Limited v Ian Cameron Wallace ((39) (1983) CH.59.). Those categories are party and party costs, common fund basis costs, trustee basis costs, solicitor and own client costs and indemnity costs. As Megarry VC made clear the awarding of indemnity costs dates back to at least 1915 ((40) (19831 1 Ch. at 65.). In a helpful summary of the law relating to indemnity costs Sheppard J in Colgate Palmolive Co. and Anor v Cussons Pty limited ((41) [1993] FCA 536; (1993) 118 ALR 248.) has shown that, at least in chancery, the power to order greater than party and party costs has existed since 1635.

I see no basis for restricting "such costs" to party and party costs only.

Nor, in my view, is the decision is Guss v Veenhuizen (No.2) ((42) [1976] HCA 57; (1976) 136 CLR 47.) a barrier to interpreting "costs" in the regulation, and now the Act, as encompassing more that legal costs. No question arises in complaints before the Tribunal of a medical practitioner seeking to recover, or being held to be entitled to recover, legal costs when in fact the person is a legal layman.

The costs which a medical practitioner suffers when charged by a complaint is both the cost of being unable to conduct a practice whilst the proceedings are being held because almost inevitably it is necessary for the medical practitioner to be present before the Tribunal to give instructions or evidence, and usually in addition, legal costs. I see no reason in principle why an unsuccessful complainant should not be ordered to pay the costs incurred by a medical practitioner in successfully defending that claim. That view accords with the view of the majority in Latoudis v Casey ((43) [1990] HCA 59; (1990) 170 CLR 534.), at least in relation to legal costs in court proceedings. The great variability of such costs, and the difficulty of determining such costs in any individual case, mitigate against a view that the actual loss of earnings of a medical practitioner the subject of a complaint should be recoverable as part of his costs. Both convenience and reasonableness suggest that the cost of that medical practitioner's time should be awarded to him by reference to a recognised scale determined as reasonable. A court scale is one such measure available to the Tribunal in exercising its power to award "such costs ... as the Tribunal may determine".

Once it is appreciated that "such costs" is not restricted to legal costs, no question of the distinction between party and party costs and indemnity costs arises. The Tribunal has a discretion to be exercised judicially to determine what in its view are fair costs which the person charged may have suffered or incurred. I see no reason why the Tribunal should not nominate a person experienced in the determination of costs, such as a taxing officer, and nominate a scale by which an officer should determine those costs.

It follows, in my view, that the orders made were within jurisdiction. Being within jurisdiction no error of law has been demonstrated. As the cross-appellant is only permitted to appeal on a point of law, in my view the appeal must be dismissed". ((44) Section 32U(i).)

In my view cost order 3 which was obviously made with Petrunic and and Anor v Barnes ((45) (1989) VR 929.) in mind, is within power. The cross-appellant argued that it sought to confer powers upon the taxing officer of the District Court of New South Wales. That was not a matter raised in argument before the Tribunal and, in my view, leave should not be granted to raise it before this court. Otherwise the terms of order 3 are procedural being an indication of the manner in which "such costs" are to be calculated. It seems to me obvious that in making an order for costs, unless the Tribunal was simply to order that all costs paid by the beneficiary of the order were to be repaid, some reference must be made to the basis of calculation of costs absent any tribunal rules specifying a scale of costs. Regulation 27(2) contemplates that once the quantum of costs has been determined, the beneficiary of the order may apply to Deputy Chairperson of the Tribunal for a certificate setting out the terms of the order, which obviously must be in a monetary sum, so that that certificate may be registered with the District Court pursuant to regulation 27(3). Order 5 made by the Tribunal had that procedure in mind after quantification of costs in accordance with Order 3.

It was additionally argued that an error of law was demonstrated because, the orders for costs actually made awarding indemnity costs showed such a misassessment of primary facts said to ground the exercise of discretion to award such costs that it demonstrated legal error in accordance with concepts discussed in House v The King ((46) [1936] HCA 40; (1936) 55 CLR 499.). In my view it is impermissible to challenge primary facts for the purpose of seeking to show that, had the facts been found differently, or understood differently, the exercise of discretion may have been different. That is so where the only appeal allowed is on a point of law. The cross-appellant is obliged to accept the findings and interpretations of fact and, upon that platform, argue that the exercise of discretion miscarried. I understood it to be accepted that, if the primary findings and interpretation of fact were not open to challenge, any challenge on the basis of wrong exercise of discretion must fail. Assuming findings made by the Tribunal, I am of the view, in any event, that error of law is not demonstrated in accordance with House v The King by the nature of the orders made.

I would propose that the cross-appeal be dismissed with costs.