Update, 24 October 2017: MH6 was affirmed on appeal: [2009] 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 [2017] 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 [2008] 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.[19] 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]
27 We turn to consider whether in the present case the applicant was afforded a fair opportunity to be heard in accordance with the hearing rule.
28 An adequate opportunity will not have been afforded unless the party knows what is alleged, knows what evidence is relied upon to substantiate the allegation, and has an opportunity to respond to the case against them and put forward their own case.[20] Even where the process has an inquisitorial component, a party against whom adverse findings may be made, having been apprised of the issues, must be given the opportunity to put evidence and argument in response, though there be no ‘case’ being advanced against the party.
29 The common law rules of natural justice and procedural fairness are ‘neither standardized nor immutable’.[21] Their content may vary, requiring adjustment according to the circumstances of the particular case.[22] In Mobil Oil Australia Pty Ltd v The Commissioner of Taxation,[23] Kitto J spoke of the ‘impossibility of laying down a universally valid test by which to ascertain what may constitute … an opportunity [to be heard] in the infinite variety of circumstances that may exist’.[24] Stephen J, to like effect, said of the requirements of procedural fairness in Salemi v MacKellar (No 2):[25]
not only will their effect and application thus vary depending upon the character and function of the particular statutory tribunal or person in relation to whose deliberations they are invoked (Ridge v. Baldwinper per Lord Reid (11)), they may also vary from case to case although each be conducted before one and the same tribunal or person.[26]
30 What may constitute an opportunity to be heard may be informed by the conduct of the parties prior to or during a hearing.[27] An evaluation of the realities and not the legalities of the situation is required when dealing with the question of what fairness demands in the circumstances.[28]
31 The procedural consequences of the rules of procedural fairness depend upon the particular statutory framework within which they apply and upon the exigencies of the particular case.[29] The relevant statutory framework is the Act and the VCAT Act. When hearing an appeal under s 120(1) of the Act, VCAT is to undertake what was described by the deputy president as ‘a merits review’, but may be described more fully as an appeal by way of re-hearing. The role of VCAT is to ‘stand in the shoes’ of the original decision maker. In doing so, VCAT has a broad discretion to chose its own procedure, but that discretion is governed by the requirements of procedural fairness.[30]
[19] See, for example, Al Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562.
[20] Towie v Medical Practitioners Board [2008] VSCA 157, [36].
[21] Public Service Board (NSW) v Osmond [1986] HCA 7; (1986) 159 CLR 656, 676 (Deane J).
[22] Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70, 91; Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 585 (Mason J); Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475, 503-504 (Kitto J); R v The Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group [1969] HCA 10; (1969) 122 CLR 546, 552-553.
[23] [1963] HCA 41; (1963) 113 CLR 475.
[24] Ibid, 503-504 (citations omitted).
[25] [1977] HCA 26; (1977) 137 CLR 396.
[26] Ibid, 444.
[27] See, for example, Banque Commerciale SA (in liq) v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 (Mason CJ and Gaudron J); Husain v O & S Holdings (Vic) Pty Ltd [2005] VSCA 269 (Nettle JA) where procedural fairness was not offended by a party proceeding beyond pleadings because of the acquiescence of the other party.
[28] White v Ryde Municipal Council [1977] 2 NSWLR 909, 925 (Reynolds JA).
[29] Minister for Immigration v Jia Legeng [2001] HCA 17, [181] (Hayne J); Abebe v The Commonwealth (1999) 197 CLR 510, 576 [187] (Gummow and Hayne JJ) and Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S154/2002 [2003] HCA 60; (2003) 77 ALJR 1909, 1918-1919 [57] (Gummow and Heydon JJ).
[30] As indeed the procedure of the Board is required to abide s 24(1).
