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Can health practitioners in Victoria be made to pay a Board's legal costs when a Board takes them to VCAT for disciplinary action?
What's happening?
There is an increasing tendency of the Boards to seek legal costs against health practitioners when the Board brings disciplinary proceedings in the Victorian Civil and Administrative Tribunal (VCAT). Recent cases have confirmed that Boards in Victoria cannot expect their costs for referring the practitioners they regulate.
Why can the Boards seek costs?
The Health Practitioner Regulation National Law (the National Law) allows that when a practitioner is referred to a tribunal, the tribunal may make any order about costs it considers appropriate for the proceedings.
In other jurisdictions Boards are often granted costs for proceedings brought against practitioners because Boards 'perform a function which promotes the public interest, and usually with limited resources1. Essentially, public safety requires Boards to bring disciplinary action, and they must be able to afford to do so.
Should Victorian practitioners be concerned?
This argument is now being made by Boards in Victoria. The prospect of paying the Board's costs for the proceeding is alarming and could lead to practitioners admitting facts that they would not otherwise admit to resolve proceedings and minimise costs.
So, what has VCAT said?
Practitioners can be comforted by numerous cases confirming VCAT remains reluctant to award costs against practitioners. While a Board may prove every allegation brought against a practitioner, it does not automatically follow that a Board will be awarded costs.
Case examples:
The matter of Asher2 established that, even if a every allegation against the practitioner is proven, the Board will not necessarily be awarded its costs. VCAT explained that there must be 'something in the particular proceeding that makes it appropriate for an award of costs to be made.' Importantly, VCAT also noted that practitioners are 'entitled to put the Board to its proofs without fear of a costs award.' It was the practitioner's conduct throughout the proceedings which was the key factor in costs being awarded to the Board.
Since Asher, numerous health Boards have sought costs. However, VCAT has confirmed and reiterated3 that the relevant factor when considering costs is a party's conduct throughout the proceeding that caused the other party to incur additional and unnecessary costs. The seriousness of the established misconduct is relevant to VCAT but practitioner's right to put the Board to its proof without fear of incurring costs is recognised.
Several recent cases have reiterated this position4 and in April 2025 VCAT reaffirmed this. In the matter of Hayden5 the Board argued that because Mr Hayden changed his evidence after the hearing had commenced, the proceeding was longer than necessary. However, VCAT did not award costs against Mr Hayden because he had a right to put a positive defence of his case.
Bottom line – where do we stand?
The matter of Hayden is reassuring for health practitioners who should not be pressured to admit facts because of the risk of costs incurred. Similarly, practitioners should not be pressured to agree to the Board's proposed determinations.
Nevertheless, all practitioners should remember their obligations to act reasonably and cooperatively throughout proceedings so that their conduct cannot be claimed to have caused unnecessary costs. Not only will this help to provide protection from a costs order, but it will also provide the Tribunal with evidence of insight and reflection about the allegations, which can only assist the practitioner with the ultimate outcome.
Footnotes
1 In Medical Board of Western Australia and
Roberman [2005] WASAT 81 (S)
2 Psychology Board of Australia v Asher (Costs) [2020]
VCAT 1281 (Review and Regulation)
3 Psychology Board of Australia v Wilkinson (Costs)
[2022] VCAT 597, Nursing and Midwifery Board of Australia v Alvarez
[2022] VCAT 444, Dr Kolta v Psychology Board of Australia [2023],
Medical Board of Australia v Hmood (Review and Regulation) [2023]
VCAT 603 (15 September 2023)Wright v Nursing and Midwifery Board of
Australia (Review and Regulation) (Costs) [2024] VCAT 69 )
4 Medical Board of Australia v YZV (Review and
Regulation) (Corrected) [2024] VCAT 1134 (27 November 2024);
Nursing and Midwifery Board of Australia v Potter (Review and
Regulation) [2025] VCAT 13; Medical Radiation Practice Board of
Australia v Lau (Review and Regulation) (Corrected) [2025] VCAT
35
5 Psychology Board of Australia v Hayden (Review and
Regulation) [2025] VCAT 322 (14 April 2025)
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
