VCAT’s Legal Practice List and the Privilege Against Penalties

I have been banging on about the privilege against penalties for a long time.  VCAT used routinely to require respondents in disciplinary proceedings to submit witness statements prior to the final hearing.  Then the Court of Appeal admonished it for doing so in Towie v Medical Practitioners Board of Victoria [2008] VSCA 157.  (That case stands for the proposition, incidentally, still not perfectly understood by people who probably should understand it, that even expert evidence of a respondent need not be filed prior to the close of the prosecution’s case: see the Court at [10], apparently approving ASIC v Plymin (2002) 4 VR 168 at [10].)

All this did not stop certain regulators inviting respondents to consent to orders to that effect without bringing the privilege against penalties or Towie’s Case to their attention and serving ‘Notices to Admit’.  Some of my clients, keen to save an appearance fee of a few hundred dollars, consented to such orders.

Then at least one regulator, rather recently given that Towie is nearly five years old, began to draw Towie’s Case to respondents’ attention when proposing directions which require them to state their case or foreshadow their evidence prior to the close of the prosecution’s case.  Now VCAT has taken matters into its own hands and produced an ‘Information Sheet’ titled ‘Disciplinary Proceedings’.   It sets out a passage from Towie and then says:

‘There are 2 directions which may be given:

Either to:

(a)  file and serve on the applicant all material, upon which he/she seeks to rely, (including his/her defence to the allegations and statements of evidence of each witness to be called at the hearing)

OR

(b) file and serve on the applicant an outline of argument which identifies in broad terms the issues for determination.

Practitioners and parties should give careful consideration as to the course they wish to follow.’

This seems like a good development to me, though it suggests that the days of respondents being required to do nothing prior to the close of the prosecution’s case are probably over.

So far as I can see the Information Sheet is not available on VCAT’s website.

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