AMA VICDOC Winter 2025 - Magazine - Page 89
COSTS I N VCAT P RO C E ED I N GS
CASE EXAMPLES
BOTTOM LINE – WHERE DO WE STAND?
The matter of Asher established that, even
if 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 reiterated 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
position and in April 2025 VCAT reaffirmed
this. In the matter of Hayden 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.
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.
-
-
For references please contact the editor.
Level 9 | 360 Elizabeth Street
Melbourne Victoria 3000
Australia
T: +61 3 9498 6699
kennedyslaw.com
VI CD O C WI NTER 2025
89
