Update, 24 October 2017: MH6 was affirmed on appeal:  VSCA 184. See also in relation to penalties privilege in the context of administrative law reviews in the disciplinary realm the thorough judgment of Kenny J in Frugtniet v Migration Agents Registration Authority  FCA 537, which is itself under appeal and could easily go to the High Court.
Original post: In recent times, I have not found legal regulators forthcoming in advising in advance the evidence to be tendered against a practitioner, and have generally sought directions for disclosure where it could not be sorted out between the parties’ representatives, sometimes attracting ire in the process. I have had disagreements, too, about who should go first in a merits review where one of the outcomes of the review involves a penalty (e.g. a fine, or suspension from practice). Usually, the plaintiff or applicant or appellant goes first, but in a review of a decision by VCAT standing in the shoes of the decision maker, it kind of makes sense for the decision maker to justify the decision first, especially if the decision is for example that the applicant is no longer a fit and proper person to practise law. I did get an order in a review of a decision to cancel without notice my client’s practising certificate that the Law Institute should prove why he was not a fit and proper person before I had to respond. Now, such orders should be routine.
MH6 v Mental Health Review Board  VSC 345, an appeal from a VCAT decision, tackles these issues head on, filling out some of the implications of the Court’s earlier decision in Towie’s Case confirming that professional discipline proceedings which may result in fines or interference with an entitlement to practise are proceedings for a penalty. The Court declined in the circumstances of this case to find that there had been a denial of procedural fairness such as to require reversal of VCAT’s decision to make the applicant go first (the main circumstances were the absence of any objection to the applicant going first by his trial counsel, and the fact that the applicant had forewarning of the Mental Health Review Board’s evidence in the form of witness statements served in advance). But I do not think you will find VCAT in merits reviews of this kind making the applicant (i.e. the subject of the administrative decision) go first in a merits review hearing again. For the Court constituted by Justice of Appeal Redlich and Acting Justice of Appeal Hargreave said:
’26 The submission of the respondent cannot be sustained. It focussed on the purpose of the order rather than its effect. It is well understood that orders which may be non-punitive in their purpose can have a grave impact upon the rights or interests of an individual. The consequences of an involuntary treatment order include the continued, indefinite, and involuntary detention of the applicant. An involuntary treatment order affects interests in a manner that enlivens those aspects of the hearing rule articulated in Towie. Procedural fairness would require that an involuntary detainee be given an opportunity to hear and respond to evidence that provides the jurisdictional basis for continued confinement. In such cases the ‘usual procedure for merits review’ at VCAT that ‘the applicant goes first’ will not normally be appropriate. Nor will such procedure ordinarily be appropriate at a hearing conducted by the Board. [emphasis added] Continue reading “Procedure in VCAT merits reviews”