Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Patrech v Psychology Board of Australia (no.2) [2023] NSWCATOD 9 Hearing dates: 18 January 2023 Date of orders: 1 February 2023 Decision date: 01 February 2023 Jurisdiction: Occupational Division Before: A Britton, Deputy President Decision: 1. Mr Patrech is to pay the Board's cost of the appeal proceedings, including the costs of determining the Board's application for costs, as agreed or assessed. Catchwords: COSTS —principles governing the exercise of the discretion to award costs to the successful party under Health Practitioner Regulation National Law (NSW) — whether respondent had engaged in "disentitling conduct" — whether respondent had complied with its obligations Australian Health Practitioner Regulation Agency, "Model Litigant Policy" Legislation Cited: Health Practitioner Regulation National Law (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Apokis v Transport for NSW [2020] NSWCA 39 Commonwealth v Gretton [2008] NSWCA 117 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 NSW v Stanley [2007] NSWCA 330 Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 Patrech v Psychology Board of Australia [2022] NSWCATOD 117 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111 Texts Cited: Australian Health Practitioner Regulation Agency, "Model Litigant Policy", December 2012 Category: Costs Parties: Adam Patrech (Appellant) Psychology Board of Australia (Respondent) Representation: Counsel: M Minucci (Respondent) Solicitors: Appellant (self-represented) MinterEllison (Respondent) File Number(s): 2022/00020563 Publication restriction: Nil REASONS FOR DECISION 1. The Psychology Board of Australia (the Board) applies for an order that Mr Adam Patrech pay its costs in his unsuccessful appeal from the Board's decision to refuse his application for general registration as a psychologist. On Appeal, the Tribunal confirmed that decision: Patrech v Psychology Board of Australia [2022] NSWCATOD 117 (the Appeal Decision). 2. Mr Patrech submits that the Board should not be awarded costs because of its conduct in the Appeal. Mr Patrech claims that the Board and its legal representatives "failed to conduct themselves in the expectation of conduct expected by the Model Litigant [and] have acted in ways contrary to the Rule of Law". Among other things, Mr Patrech claims that the Board's staff and legal representatives "colluded and otherwise acted in a manner aimed to pervert the course of justice". That conduct, asserts Mr Patrech, caused the Tribunal to be misled and to make "egregious errors". 3. Mr Patrech has failed to establish that the Board engaged in "disentitling conduct". I have decided to exercise the discretion to order that Mr Patrech pay the Board's costs in the appeal. Determination of the Board's costs application 1. In the hearing of the appeal, the Board made oral submissions in support of its application for costs. Mr Patrech did not respond to those submissions. 2. In the Appeal Decision, the Tribunal directed that Mr Patrech provide written submissions in response to the Board's application for costs (the costs application), directed the Board to reply to those submissions, and set a timetable for the provision of those submissions. At Mr Patrech's request, that timetable was extended several times. 3. In addition, the Tribunal invited the parties to comment on its preliminary view that the costs application could be adequately determined "on the papers" as permitted by s 50 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). The Board agreed with that view and consented to the application being dealt with on the papers. Mr Patrech, on the other hand, claimed he would be prejudiced unless he had the opportunity to present his submissions opposing the cost application at an oral hearing and requested that a hearing be held to determine the costs application. I acceded to Mr Patrech's request. 4. Mr Patrech filed written submissions responding to the Board's application for costs filed on 28 November 2022 and 8 December 2022. Unless otherwise stated, all references to Mr Patrech's written submissions are to those filed in November 2022. Both parties made oral submissions. Tribunal's power to award costs 1. Where, as in this case, proceedings are commenced by a health practitioner under s 175 of the Health Practitioner Regulation National Law (NSW) (the National Law), the Tribunal is empowered to "make any order about costs it considers appropriate for the proceedings": s 175B. 2. In similar terms, cl 13(1) of Sch 5D to the National Law provides that the Tribunal "may order any other person entitled to appear (whether as of right or because leave to appear has been granted) at … an appeal before the Tribunal to pay costs to another person as decided by the Tribunal". Clause 13 applies instead of s 60 of the NCAT Act, which provides that the Tribunal may award costs but "only if it is satisfied that there are special circumstances warranting an award of costs": cl 13(4). 3. In exercising the power conferred by the National Law to award costs, the "usual rule" is that "costs follow the event", that is, the successful party is generally entitled to receive their costs from the unsuccessful party: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]; Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [85] and Health Care Complaints Commission v Do [2014] NSWCA 307 at [51]. 4. The presumption that the successful party is entitled to receive their costs will generally be displaced only where there has been some "disentitling conduct" by that party: Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [40]. It is for the losing party to establish a basis for any departure from the usual rule: Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111 at [10]; NSW v Stanley [2007] NSWCA 330 at [24]. 5. In Commonwealth v Gretton [2008] NSWCA 117, Hodgson JA explained the basis for the "usual rule" at [121]: In my opinion, underlying both the general rule that costs follow the event, and the qualifications to that rule, is the idea that costs should be paid in a way that is fair, having regard to what the court considers to be the responsibility of each party for the incurring of the costs. Costs follow the event generally because, if a plaintiff wins, the incurring of costs was the defendant's responsibility because the plaintiff was caused to incur costs by the defendant's failure otherwise to accord to the plaintiff that to which the plaintiff was entitled; while if a defendant wins, the defendant was caused to incur costs in resisting a claim for something to which the plaintiff was not entitled: cf Ohn v Walton (1995) 36 NSWLR 77 at 79 per Gleeson CJ. Departures from the general rule that costs follow the event are broadly based on a similar approach. The Board's alleged disentitling conduct 1. In written submissions Mr Patrech made multiple allegations about the conduct of the Board and its legal representatives. At the hearing of the costs application, Mr Patrech confirmed that he relied on the following conduct, separately and in combination, in support of the contention that the Board's conduct justified departing from the "usual rule" 1. The failure of the Board to obtain an updated record of Mr Patrech's criminal history 2. The failure of the Board to give the expert witnesses an updated record of Mr Patrech's criminal history 3. The late service of an affidavit prepared by the Board's solicitor 4. The Board's conduct in allegedly misleading Mr Patrech 5. The Board's failure to record the whole of the proceedings before the Board on 2 November 2021 6. The Board's conduct in sending allegedly threatening emails to Mr Patrech. Ground 1: The failure of the Board to obtain an updated record of Mr Patrech's criminal history 1. Mr Patrech contends that the Board was obliged to give the Tribunal an updated record of his criminal history and did not do so until the third day of the hearing of the appeal. I understand Mr Patrech to suggest that as a consequence the Tribunal was misled about the seriousness of his criminal history. 2. On 14 June 2022, the Board filed material in opposition to the appeal (Exhibit R 1). The most recent version of the record of Mr Patrech's criminal history contained in that material, was the record issued by the Australian Criminal Intelligence Commission (ACIC) on 31 July 2020 (the second ACIC record). The Board claims that the reason it took no steps to obtain from the ACIC or NSW Police a more recent record of Mr Patrech's criminal history was that it was not until the directions hearing before Deputy President Boland on 15 June 2022 that Mr Patrech disclosed that there had been a development in his criminal history since July 2020. 3. The Board points out that on learning of that disclosure it took steps to obtain an updated criminal record. On 15 July 2022, the Board sought Mr Patrech's consent to obtain a copy of his criminal history from ACIC. On 20 July 2022, after Mr Patrech refused to give consent to that request, the Board filed an application seeking a summons to be issued to the NSW Police to produce the record of Mr Patrech's criminal history. The NSW Police did not produce those records until after the commencement of the appeal hearing. The Board contends that the delay by the NSW Police in producing those records was outside its control. Consideration 1. Mr Patrech's criticism of the Board's failure to provide to the Tribunal a more recent version of Mr Patrech's criminal history in the documents filed by Board before the hearing of the appeal is misconceived. 2. First, there is no evidence, nor does Mr Patrech suggest, that before the 15 June 2022 directions hearing Mr Patrech had informed the Board that there had been a material development in his criminal history since July 2020. In those circumstances, it cannot be said, as Mr Patrech claimed, that the Board sought to "deceive" the Tribunal by providing an out-of-date record of his criminal history. 3. Second, in any event, Mr Patrech is mistaken in claiming that there was a material development in his criminal history after July 2020. The Tribunal observed in the Appeal Decision at [44]-[47] that there was no material difference between the record of Mr Patrech's criminal history produced to NCAT by NSW Police during the appeal hearing (Exhibit R4) and the second ACIC record contained in Exhibit R11. Each document recorded the most recent event in Mr Patrech's criminal history as the decision made by the District Court NSW on 26 June 2020, to among other things, quash Mr Patrech's conviction in relation to the offence of "contravene prohibition/restriction in AVO (domestic)" for which Mr Patrech had been convicted in the NSW Local Court in June 2019. [1] 4. In the interests of completeness, I note that Mr Patrech made lengthy submissions criticising several decisions made by the NCAT Registrar concerning his access to the documents produced under summons during the hearing by NSW Police and ACIC. That alleged conduct is irrelevant to the question raised by Mr Patrech, namely whether the Board had engaged in conduct which disentitled it from an award of costs. Ground 2: The Board's failure to give Drs Evenhuis and Shum an updated record of Mr Patrech's criminal history 1. Mr Patrech submits that the Board's failure to give the two experts who gave evidence in the appeal hearing, psychiatrists, Dr Michael Evenhuis and Dr Denis Shum, the most recent version of his criminal history amounts to disentitling conduct. Dr Evenhuis 1. Mr Patrech contends that the Board misled Dr Evenhuis by failing to give him the most recent version of his criminal history. That failure amounts to a failure by the Board to comply with its obligation as a "model litigant". 2. The Board concedes that it failed to give Dr Evenhuis the most recent record of his criminal history. However, the Board contends that Mr Patrech was not prejudiced as a result because as Dr Evenhuis recorded in his first report, Mr Patrech gave him a detailed self-report which included a statement about his successful 2020 appeal to the District Court. The Board asserts that Dr Evenhuis relied upon that self-report in reaching his opinion about whether Mr Patrech was fit to practice as a psychologist. Further, the Board asserts that there is no evidence that, had Dr Evenhuis been given the most recent history, he would have changed his opinion about that question. In addition, the Board rejects Mr Patrech's assertion that it deprived him of the opportunity to "update" Dr Evenhuis and points out that Mr Patrech was given the opportunity to put relevant information to Dr Evenhuis during cross-examination. Background 1. At the request of the Australian Health Practitioner Regulation Agency (AHPRA) [2] , Dr Evenhuis assessed Mr Patrech and prepared a report dated 28 November 2020 and a supplementary report dated 15 August 2022. In addition, Dr Evenhuis gave oral evidence. The Board tendered both reports in the appeal proceedings. 2. In November 2020, when the Board requested Dr Evenhuis to give an opinion about whether Mr Patrech was "impaired" and fit to practice as a psychologist, it provided Dr Evenhuis with 12 documents which included the record of Mr Patrech's criminal history issued by ACIC on 4 March 2020 (the first ACIC record). 3. In 2022, the Board requested Dr Evenhuis to give an opinion about whether, if Mr Patrech were to return to practice subject to the conditions recommended by Dr Evenhuis in his first report, there was a risk that Mr Patrech might communicate with a client, or a third party associated with a client, in a manner which was "inappropriate, harassing and/or offensive". Apparently, the Board did not provide Dr Evenhuis with any additional material when it made that request. Consideration 1. When Dr Evenhuis prepared his first report, the record he had been given by the Board, the first ACIC record was out of date because it pre-dated Mr Patrech's successful appeal to the District Court (see [19] above). 2. I disagree with the Board's assertion that it can be said with confidence that in reaching his opinion about Mr Patrech's fitness to practice, Dr Evenhuis relied on Mr Patrech's self-report of his criminal history. From the available material it is simply not possible to say whether Dr Evenhuis accepted Mr Patrech's claim that he had "successfully appealed a breach of AVO" or appreciated what Mr Patrech meant by that claim. Nor, on the available material, is it possible to say whether Dr Evenhuis appreciated the significance of Mr Patrech's claim and that it was at odds with the first ACIC record. As is apparent from the self-report recorded by Dr Evenhuis, the history given by Mr Patrech covered a wide range of topics and was somewhat disjointed. 3. However, neither report tends to indicate that Dr Evenhuis considered Mr Patrech's criminal history to be a significant factor in his assessment of Mr Patrech's fitness to practice. In his second report, Dr Evenhuis made no mention of Mr Patrech's criminal history. In his first report, Dr Evenhuis stated that if Mr Patrech was able to achieve stability in his life, with conditions he would probably be fit to practice. 4. However, this does not dispose of the contention raised by Mr Patrech, namely that the Board's failure to provide Dr Evenhuis with the second ACIC report, demonstrated that the Board failed to act in accordance its obligation as "model litigant" and, as a consequence, the Board was not entitled to an award of costs. 5. In December 2012, AHPRA issued a Model Litigant policy (the Model Litigant policy). That policy applies to the Board. At [2] the policy states: The obligation to act as a model litigant 2.1 The Policy requires the National Law entities to act honestly and fairly in handling litigation. This includes acting with complete propriety, fairly and in accordance with the highest professional standards. 2.2 This Policy requires National Law entities to: 2.2.1 Avoid litigation by attempting to settle legitimate claims where possible without recourse to litigation, 2.2.2 Only pursue litigation where there is a reasonable prospect of success, 2.2.3 Not cause unnecessary delay or expense in handling litigation, 2.2.4 Act consistently in handling litigation, 2.2.5 Minimise the costs of litigation by not requiring another party to prove a matter the National Law entity knows to be true; and, 2.2.6 Not taking advantage of a party who lacks the resources to litigate a legitimate claim. 2.3 Nothing in this Policy is intended to prevent a National Law entity from acting firmly and properly in defending, protecting or pursuing its interests and in doing so taking all legitimate steps in pursuing litigation. 2.4 Without limiting the generality of the above, nothing in this Policy is intended to prevent a National Law entity from enforcing a costs order or seeking to recover costs, from asserting a claim of legal professional privilege or public interest immunity. 1. I understand Mr Patrech to contend that the failure of the Board to give Dr Evenhuis an up-to-date version of his criminal history amounts to a breach of the obligation in [2.1] of the Model Litigant policy "to act honestly and fairly in handling litigation … in accordance with the highest professional standards". 2. In Apokis v Transport for NSW [2020] NSWCA 39, Basten JA considered the operation of the "NSW Government, Model Litigant Policy for Civil Litigation", observing at [12] that there is considerable overlap between that the obligation imposed on a government agency by that policy and the obligation imposed by Pt 6 of the Civil Procedure Act 2005 (NSW) to facilitate the just, quick and cheap resolution of the real issues in the proceedings and the obligations imposed on a government agency. That observation applies equally to the obligation imposed on the Board by the Model Litigant Policy and the obligation imposed on the Board by s 36(3) of the NCAT Act which required the Board as a party to the appeal to co-operate with the Tribunal to give effect to the guiding principle of that Act, "to facilitate the just, quick and cheap resolution of the real issues in the proceedings". 3. There is no evidence that the Board knowingly or deliberately failed to give Dr Evenhuis an updated copy of Mr Patrech's criminal history. The most likely explanation for that failure is an oversight by the Board. In reaching that conclusion, I note that, in addition to the first ACIC record, the Board gave Dr Evenhuis numerous documents including several prepared by Mr Patrech after the District Court appeal in support of his application for registration. 4. The Tribunal is entitled to expect that any material given to an expert witness will be up to date and accurate, especially where the party calling that witness aspires be a model litigant. In this appeal, that expectation was not fulfilled. The Board's failure to ensure that Dr Evenhuis was given the most recent version of Mr Patrech's criminal history available to the Board amounts to a failure to comply with the obligation to act in accordance with the highest professional standards. 5. Nonetheless, I am not satisfied that that failure was sufficiently serious to warrant the exercise of the discretion to refuse to award costs to the Board in whole or part. In reaching that conclusion I consider the following factors to be significant: 1. There is no evidence that the failure was intentional, deliberate or resulted in any substantive prejudice or unfairness to Mr Patrech. 2. Despite Mr Patrech's claims to the contrary, apart from this failure, there is no evidence to suggest that the Board otherwise failed to act in accordance with its obligation as a model litigant or to comply with its duty to co-operate with the Tribunal to give effect to the guiding principle of the NCAT Act. Indeed, in circumstances where Mr Patrech was either unable or unwilling to conduct his case in an efficient manner, as evidenced by, for example, the late service of his material, the making of numerous unsuccessful interlocutory applications, together with his practice of engaging in "inflammatory, obscene and menacing correspondence" [3] , the Board and its legal representatives demonstrated admirable restraint in their conduct of the appeal. Dr Shum 1. Mr Patrech has been under the care of Dr Shum since August 2016. Three reports prepared by Dr Shum were tendered in the appeal: 25 February 2020, 28 February 2021 and 15 August 2022. The first two reports were tendered by the Board [4] . The third report was tendered by Mr Patrech. 2. Dr Shum's first report was prepared at the request of the solicitors who represented Mr Patrech in criminal proceedings, apparently relating to the offence of "contravening a prohibition or restriction in an apprehended domestic violence order". [5] 3. Dr Shum's second report was prepared at the request of the Board. That report was provided in response to a request by the Board to provide a "medical report". The Board apparently did not give Dr Shum any material when it made that request. Dr Shum made no mention of any material provided by the Board in that report. 4. Dr Shum's second report was prepared at the request of Mr Partech. In that report, Dr Shum did not refer to Mr Patrech's criminal history or state that he had been provided with material by Mr Patrech. 5. In circumstances where Dr Shum was called by Mr Patrech to give evidence, where Dr Shum's most recent report was prepared at Mr Patrech's request, and where, in commissioning the second report, the Board did not refer to, or ask Dr Shum to comment on Mr Patrech's criminal history, I do not accept the proposition that the Board was obliged to give Dr Shum an updated copy of Mr Patrech's criminal history. There will be circumstances where, consistent with the obligation to act fairly and in accordance with the highest professional standards, a party will be obliged to alert the Tribunal where their opponent has given an expert witness inaccurate or out of date material. This is not such a case. Ground 3: The late service of the affidavit prepared by the Board's solicitor 1. Mr Patrech contends the Board "ambushed" him by giving him an affidavit by the Board's solicitor after the commencement of the hearing of the appeal. That affidavit was affirmed on 15 August 2022 by the solicitor who represented the Board in the appeal (the Affidavit). The hearing commenced on 15 August 2022 and ran for four days. 2. The Board claimed that the reason it did not give Mr Partrech the Affidavit before the commencement of the hearing was that it was not until the first day of the hearing that Mr Patrech intimated that he was not the author of various emails sent to the Solicitor from his email address or had left two voice messages on the Solicitor's answer phone (the subject material) [6] . The Board sought to rely on that material in support of its contention that Mr Patrech had "repeatedly been aggressive, abusive and threatening in his dealings with AHPRA's staff and its legal representatives" and that this conduct demonstrated that Mr Patrech is not a fit and proper person to hold registration. [7] 3. At some point during the hearing, Mr Patrech admitted that he was the author of the subject material. There being no need to establish the provenance of that material, the Board decided not to tender the Affidavit. 4. In the hearing of the cost application, Mr Patrech appeared to suggest that, at the commencement of the appeal hearing, he did not intimate that he was not the author of the subject material but had merely asked: "who are the people who made the telephone call?". Further, he said that it is of significance that he made that statement in submissions and not evidence. Consideration 1. As Mr Patrech points out, the Tribunal directed the Board to give Mr Patrech the material on which it intended to rely before the commencement of the hearing. In answer to that direction some months before the hearing, the Board gave Mr Patrech an affidavit prepared by Mr Daniel Hilary, national manager (registration) AHPRA [8] (Exhibit R1). Attached to that affidavit were over 1000 pages of documents including documents given to, obtained by, or created by AHPRA in the course of determining Mr Patrech's application for registration. 2. However, that direction did not prevent the Board seeking leave from the Tribunal to tender additional material where, as occurred, new issues arose in the course of the appeal. 3. Mr Patrech's claim that he had not intimated that he was not the author of the subject material must be rejected. That was the clear meaning conveyed by the statement, "who are the people who made the telephone call?". That that statement was made in submissions, not in evidence, is irrelevant. As a consequence of Mr Patrech's statement, if it was to rely on the subject material, the Board was required to establish its provenance and the identity of the speakers. 4. The assertion that Mr Patrech was prejudiced by not being given the Affidavit before the hearing cannot be accepted. First, as the creator of the subject material, he was well placed to be able to respond to the Solicitor's claim that Mr Patrech had sent the subject emails and left the subject voice messages. Second, from the Board's outline of submissions dated 25 May 2022, Mr Patrech had notice of the contention sought to be made by the Board about that material: that it demonstrated that he was not a fit and proper person to hold registration. 5. The assertion that the Board acted improperly by failing to give Mr Patrech the Affidavit before the hearing is rejected. Ground 4: The Board's conduct in misleading Mr Patrech 1. In submissions, Mr Patrech made numerous allegations about the conduct of Mr Hilary in relation to his handling of Mr Patrech's application to be registered as a psychologist. Among other things, Mr Patrech alleged that Mr Hilary intentionally misled him and, among other things, caused him to disclose he had had an intimate relationship with a client, a disclosure the Board later used against him. In addition, Mr Patrech complains that Mr Hilary and the Board failed to take appropriate action against a psychologist who had been employed by Mr Patrech and had been convicted of multiple child sex abuse offences. [9] At [99] - [100] of the Appeal Decision, the Tribunal summarised the allegations made by Mr Patrech about AHPRA's purported failure to scrutinize the employee's application for registration as a psychologist and the resulting reputational harm caused to Mr Patrech. 2. Mr Patrech failed to particularise the numerous allegations made about Mr Hilary. None were supported by evidence. The claim that Mr Hilary misled Mr Patrech is not established. 3. Even if, as Mr Patrech contends, the Board could and should have done more, in assessing the suitability of the employee for registration as a psychologist, it is irrelevant to the question of whether the Board's conduct in dealing with Mr Patrech's application for registration, and the subsequent appeal from the Board's decision, warrants a departure from the "usual rule". Ground 5: The Board's failure to record the whole of the proceedings on 2 November 2021 1. Mr Patrech contends that the Board's failure to record the whole of the proceedings before it on 2 November 2021 demonstrates "misconduct and ineptitude". Background 1. On 18 June 2021, the Board issued Mr Patrech a notice outlining its proposal to refuse Mr Patrech's application for registration (the Proposal). At the Board's invitation, Mr Patrech made oral submissions responding to the Proposal in proceedings before the Board on 2 November 2021 and 7 December 2021. 2. The Board made a recording of both proceedings. The first five minutes of the proceedings on 2 November 2021 was not recorded apparently because of a problem with the Board's recording equipment. The recording commences with a statement by the Chair of the Board, Associate Professor Chris Willcox acknowledging that problem and inviting Mr Patrech to repeat any comments he had made before the problem was rectified. Consideration 1. Apparently it is the Board's practice to record proceedings of the type held on 2 November 2021. Mr Patrech has failed to explain how he was prejudiced by the failure to record the whole of those proceedings. The Board's failure to record the entirety of those proceedings was a technical error of a minor nature. That failure does not warrant the exercise of the discretion to depart form the usual rule. Ground 6: The Board's conduct in allegedly sending threatening emails to Mr Patrech 1. Mr Patrech asserts that the email he received from the Board on 12 August 2022, the last working day before the commencement of the hearing, was of a threatening nature and "contrary to the rule of law and the expected duties of the Model litigant". 2. In that email, sent to Mr Patrech at 16:57 PM, the Solicitor referred to a series of emails and voice messages received from Mr Patrech (the subject material discussed at [43] above) and stated that, at the hearing of the appeal, the Board may seek to tender that material. 3. In addition, in that email, the Solicitor wrote, "as foreshadowed on a number of occasions our client may seek an order that you pay its costs, either on an indemnity basis or an ordinary basis". The Solicitor drew Mr Patrech's attention to previous correspondence in which the Board had notified Mr Patrech of its intention to seek an order that he pay the Board's costs. 4. The tone and content of the email, objectively assessed, could not be said to be threatening. The Board was entitled to notify Mr Patrech that it proposed to tender the subject material. In addition, the Board was entitled to remind Mr Patrech of its intention to seek an order for costs. The premise on which this ground rests is rejected. Conclusion 1. Mr Patrech has failed to establish that the Board has engaged in disentitling conduct or that there is a proper basis to justify the exercise of the discretion to order that he not pay some or all of the Board's costs. Orders 1. Mr Patrech is to pay the Board's cost of the appeal proceedings, including the costs of determining the Board's application for costs, as agreed or assessed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar Endnotes 1. See, Exhibit R 1, p 149-154. 2. See, Appeal Decision at [73]-[76]. 3. Established by the National Law, AHPRA provides administrative support to the Psychology Board of Australia and the other National Boards established by the National Law. See, National Law ss 23, 25(a), 31. 4. Appeal Decision at [103]. 5. Exhibit R 1, pp 79-90, 879-883. 6. Appeal Decision at [108]. 7. See, Exhibit R 5. 8. See, Appeal Decision at [91]. 9. Established by the National Law, AHPRA provides administrative support to the Psychology Board of Australia and the other National Boards established by the National Law. See, National Law ss 23, 25(a), 31. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 February 2023