Weinstein v Medical Practitioners Board of Victoria

Court of Appeal (Vic)|2008-11-13|Before: MAXWELL P, NEAVE and WEINBERG JJA

PRACTICE AND PROCEDURE - Costs - Appeal dismissed - Whether departure from usual costs order - Whether successful argument raised before judge at first instance - Whether appeal initiated in the public interest - Appellant ordered to pay respondent's costs of appeal - Medical Practice Act 1994 (Vic).

1 On 30 September 2008, this Court dismissed an appeal by Dr Weinstein against a decision of a judge of the Trial Division, dismissing her application for an order in the nature of prohibition, or an injunction, to prevent a panel established under of the ('the Act') from continuing with a formal hearing into Dr Weinstein's professional conduct.

2 The respondent sought an order that the appellant pay its costs of the appeal and the appellant sought an order that each party bear its own costs. Both parties were given leave to submit written submissions in support of the orders they sought.

3 Counsel for Dr Weinstein submitted that the Court should exercise its discretion to order that each party bear its own costs, for two reasons. First, it was said that the Medical Practitioners Board ('the Board') had 'largely if not entirely succeeded on arguments not put to the primary judge'. It was said that the Court had specifically requested counsel to address argument as to whether the panel had inquisitorial powers, that this had not been argued before the judge below and that the respondent had succeeded because the Court had held that the panel had inquisitorial functions.

4 Secondly, it was argued that the appeal raised matters of particular and general public interest. The matter of particular interest related to the interpretation of the Act and the powers of the Board under the Act. The matter of general interest was the extent to which a tribunal could conduct internet searches, which was said to be 'a matter of abiding public interest in judicial and quasi-judicial spheres'.

5 Counsel for the Board submitted it was fair and appropriate for the appellant to pay the respondent's costs of the appeal. In the proceedings below both parties had made submissions as to the function and powers of a panel conducting a formal hearing under the Act and, in particular, on the meaning of s 52(1)(c) of the Act.

6 Counsel for the Board said that that the judge below had not erred in stating or applying the appropriate test as to apprehended bias and that there was no general public interest in the case, although it was conceded that there was some public utility in clarifying the scope of the power created by s 52(1)(c) of the Act. Counsel also said that although the judge below had rejected Dr Weinstein's application, the Board had not sought costs in that hearing, because the judge had criticised the panel for conducting the internet search. On appeal it was held that s 52(1)(c) gave the panel power to undertake that search.

7 In our opinion, the appellant should be ordered to pay the respondent's costs of the appeal. The Trial Division judge heard submissions on the functions and powers of a panel conducting a formal hearing and this matter was discussed in [37]-[50] of his reasons, under the heading 'Can the panel conduct its own inquiries?'. It was submitted to his Honour that the panel's entitlement to inform itself 'in any way that it thinks fit'[1] included making relevant inquiries, provided that the results of those inquiries were made available to the practitioner.

8 The fact that the Court's decision on the scope of the panel's powers under s 52(1)(c) of the Act has implications beyond the immediate parties is simply a consequence of the Court's role in interpreting legislation. Of itself, it does not justify depriving the successful respondent of its costs.

9 The appellant's counsel relied on the case of Oshlack v Richmond River Council[2] in support of the submission that the Court should exercise its discretion in Dr Weinstein's favour. In that case a majority of the High Court[3] held that the trial judge had not taken account of irrelevant considerations, in refusing to make an order for costs in favour of the successful Council. The proceedings had been initiated by the applicant under s 123 of the Environmental Planning and Assessment Act 1979 ( NSW), which expanded the standing requirement to allow a person to take proceedings to enforce the legislation. In exercising his discretion as to costs, the trial judge had taken account of the policy of the legislation, the fact that the applicant had no personal interest in the proceedings but was seeking a declaration that the Council's consent to a development of land which would threaten a koala habitat was void, and of the fact that the litigation raised issues about the interpretation and administration of environmental legislation. Oshlack does not support the proposition that where litigation has some element of public interest, the Court should refuse to order costs in favour of a successful appellant.[4]

10 In any case, this appeal was not initiated in the public interest, but in order to prevent the panel from continuing its examination of Dr Weinstein's professional conduct.

11 We would therefore order that the appellant pay the respondent's costs of the appeal.

[3] Gaudron, Gummow and Kirby JJ; Brennan CJ and McHugh J dissenting.

[4] Oshlack [1998] HCA 11; (1998) 193 CLR 72, 90-91 (Gaudron and Gummow JJ), 114-115 (Kirby J). For further discussion of Oshlack, see Board of Examiners v XY [2006] VSCA 190, [14]-[15] (Chernov JA).

Planning and Assessment Act 1979

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