Applicant v Respondent

1 This proceeding involves an application for leave to appeal under section 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act'), by the Applicant, Dr Spencer, from the orders of the Victorian Civil and Administrative Tribunal ('VCAT' or the 'Tribunal') made on 4 September 2024 ('Tribunal's Orders').

2 This appeal seeks to overturn the Tribunal's Orders affirming the decision of the Respondent, the Medical Board of Australia (the 'Board'),[1] to take immediate action to suspend Dr Spencer's registration, pursuant to section 156(1)(e) of the Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic) ('National Law').[2]

1. The reconsidered decision of the Medical Board of Australia made on 17 June 2024, affirming its decision dated 10 July 2023 to take immediate action and suspend Dr Spencer's registration, is confirmed.
2. The Tribunal records the Applicant relies on s 105(2) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) in respect of answers to questions or documents produced in these proceedings that might tend to incriminate him.

4 For the following reasons, I am not satisfied that any of the questions of law and grounds of appeal outlined in the Applicant's amended notice of appeal filed on 30 May 2025 are made out.

5 The factual and procedural history concerning this appeal is long and complex. I will therefore provide a brief summary.

6 In January 2006, Dr Spencer was first registered as a medical practitioner.

7 On 17 January 2015, Dr Spencer's wife ('Ms Spencer') died, aged 29, from cocaine toxicity, while alone with Dr Spencer in the apartment they shared. Victoria Police investigated Ms Spencer's death.

8 On 19 January 2015, the Board received a notification from Dr Odell concerning the investigation into Ms Spencer's death and Dr Spencer's involvement. Dr Odell had been asked by Victoria Police to examine Dr Spencer.

9 On 22 January 2015, the Board decided to investigate Dr Spencer's health and conduct in relation to Ms Spencer's death under section 160 of the National Law. On 5 February 2015, the Board received an undertaking from Dr Spencer, via his legal practitioner, not to practise as a medical practitioner until approved to do so by the Board.

10 On 1 November 2015, Dr Spencer's medical registration lapsed.[3]

11 On 25 February 2016, following an investigation into Dr Spencer's health and conduct, the Board decided to take no further action in relation to Dr Odell's notification. This decision was based on the fact that Dr Spencer was no longer registered and, if he were to reapply, section 80 of the National Law operated to mitigate any risk posed.

12 In January 2020, Dr Spencer reapplied for registration. He was granted registration, subject to conditions, in June 2021. At that date, there had been no inquest into Ms Spencer's death, and Victoria Police's investigation was ongoing.

13 On 5 February 2021, the Australian Health Practitioner Regulation Agency ('AHPRA') received information from Victoria Police in relation to its investigation of Ms Spencer's death. A new notification was opened by the Board.[4]

14 A coronial inquest was held by his Honour Judge Cain between December 2022 and March 2023. On 8 June 2023, his Honour handed down his findings. His Honour found that Ms Spencer died of cocaine toxicity and stated further that he had[5]

formed the belief ... that an indictable offence may have been committed ... The indictable offence I have formed the belief to the requisite standard is negligent manslaughter due to the delays in seeking urgent medical assistance and Dr Spencer's duty of care to Mrs Spencer upon discovering her in a state requiring urgent medical assistance.

15 On 19 June 2023, the Board proposed to take immediate action to suspend Dr Spencer's registration.[6] The Board notified Dr Spencer of the proposal and invited him to make submissions in response.[7] Dr Spencer made submissions on 7 July 2023.

16 On 10 July 2023, after considering Dr Spencer's submissions, the Board suspended Dr Spencer's registration.[8]

17 Dr Spencer sought review of the Board's decision at the Tribunal. The Tribunal conducted a hearing on 11 April 2024 and reserved its decision.

18 In May 2024, while the Tribunal's decision remained reserved, the Board was notified that the Office of Public Prosecutions and Victoria Police would not be pursuing charges against Dr Spencer in respect of Ms Spencer's death.

19 On 23 May 2024, the Tribunal invited the Board to reconsider their decision under section 51A of the VCAT Act.

20 On 3 June 2024, the Board decided to propose to affirm the decision under review.

21 On 4 June 2024, the Board informed Dr Spencer of the proposed decision and invited him to make a written or verbal submission.

22 On 17 June 2024, the Board made its reconsidered decision. It formed the belief, notwithstanding that Dr Spencer would not be charged with criminal offences, that it was in the public interest to take immediate action and suspend Dr Spencer's registration.[9]

23 On 18 June 2024, the Board informed the Tribunal of its reconsidered decision.

24 On 25 June 2024, Dr Spencer wrote to the Tribunal, stating:[10]

I have already outlined the MBA have presented fraudulent allegations which also bring their decision into legal error, as well as the findngs [sic] of the coroner being vitiated by fraud. I require you decision on this matter. It is agains ta [sic] fair hearing to not provide your decision.

25 On 22 July 2024, the Tribunal made an order, inter alia, that the application be listed for a decision on the papers, without a hearing. The decision on the papers was scheduled on 12 September 2024. The date for making a decision on the papers was brought forward to 2 September 2024.[11]

26 On 12 August 2024, Dr Spencer sent via email, six PDFs to the Tribunal, cumulatively being his submissions.[12]

27 On 4 September 2024, the Tribunal made final orders, affirming the Board's decision, and published its reasons for those orders.

28 The Tribunal commenced its reasons with a summary of the case.[13] It then set out the new information received after the hearing, namely, the information that Dr Spencer would not be charged with any criminal offence relating to Ms Spencer's death and the new expert report of Associate Professor Gunja, who provided evidence to Victoria Police relevant to Ms Spencer's death and the surrounding circumstances.[14]

29 The Tribunal described the Board's reconsidered decision,[15] and the Coroner's investigation and findings,[16] before summarising Dr Spencer's response to the coronial findings and the Board's decision.[17]

30 The Tribunal then set out its role and the legal framework. Importantly, the Tribunal set out what it was required to decide, as well as clarifying what it was not required to decide, to exercise its jurisdiction to review the Board's decision.

31 The Tribunal concluded it did not need to determine the contested factual matters Dr Spencer urged it to determine, ruling that it was not deciding whether the Coroner's findings are supported by relevant evidence in the coronial brief, nor was it deciding whether Victoria Police's investigation or the coronial investigation were incomplete or 'corrupt' as Dr Spencer asserted. Further, the Tribunal was not deciding or suggesting that the Board had acted inappropriately in its interactions with Dr Spencer.[18]

32 The Tribunal set out its analysis of the relevant principles in respect of 'public interest'[19] and provided a summary of some other cases decided in respect of section 156(1)(e).[20]

33 The Tribunal addressed specific findings of the Coroner, and Dr Spencer's response to those findings under the subheading 'Impact on public confidence',[21] before evaluating 'whether the public, reading those explanations after reading the Coroner's findings, would be sufficiently reassured that he had acted appropriately and consistently with the obligations of a medical practitioner (and a reasonable person) in the circumstances, as he contends.'[22]

34 The Tribunal assessed whether it was ' fair and proportionate to take immediate action now'[23] and assessed the 'relevance of Dr Spencer's more recent communications', concluding in respect of those communications that they were not 'determinative to our decision'.[24]

35 The Tribunal noted the public interest factors which militated against taking immediate action, before addressing the balancing exercise of weighing those factors against the factors which militate in favour of taking immediate action, and setting out its reasons for concluding that suspension was the appropriate form of immediate action.[25]

36 The National Law is a national registration and accreditation scheme for the regulation of health practitioners pursuant to section 3(1)(a) of the National Law.

37 The objectives of the scheme are established under section 3(2) of the National Law, and the 'guiding principles' in section 3A which states:

(1) The main guiding principle of the national registration and accreditation scheme is that the following are paramount -

(a) protection of the public;

(b) public confidence in the safety of services provided by registered health practitioners and students.

(2) The other guiding principles of the national registration and accreditation scheme are as follows -

(a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way;

...

(c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.

38 Divisions 2, 3 and 4 of pt 8 of the National Law provide for mandatory and voluntary notifications to be made to the Board in respect of registered medical practitioners.

39 Following the preliminary assessment of a notification pursuant to div 5 of the National Law, there are several avenues open to the Board such as:

(a) taking no further action pursuant to section 151;

(b) conducting an investigation pursuant to div 8; and

(c) taking immediate action pursuant to pt 8 div 7 such as the suspension of a health practitioner's registration pursuant to section 155(a).

40 Section 156 of the National Law empowers the Board to take immediate action:

(1) A National Board may take immediate action in relation to a registered health practitioner ... if -

(a) the National Board reasonably believes that -

(i) because of the registered health practitioner's conduct, performance or health, the practitioner poses a serious risk to persons; and

(ii) it is necessary to take immediate action to protect public health or safety; or

(b) the National Board reasonably believes that -

(i) the student poses a serious risk to persons because the student -

(A) has been charged with an offence, or has been convicted or found guilty of an offence, that is punishable by 12 months imprisonment or more; or

(B) has, or may have, an impairment; or

(C) has, or may have, contravened a condition of the student's registration or an undertaking given by the student to a National Board; and

(ii) it is necessary to take immediate action to protect public health or safety; or

(c) the registered health practitioner's registration was improperly obtained because the practitioner or someone else gave the National Board information or a document that was false or misleading in a material particular; or

(d) the registered health practitioner's or student's registration has been cancelled or suspended under the law of a jurisdiction, whether in Australia or elsewhere, that is not a participating jurisdiction.

(e) the National Board reasonably believes the action is otherwise in the public interest.

_Example of when action may be taken in the public interest - _

A registered health practitioner is charged with a serious criminal offence, unrelated to the practitioner's practice, for which immediate action is required to be taken to maintain public confidence in the provision of services by health practitioners.

(2) However, the National Board may take immediate action that consists of suspending, or imposing a condition on, the health practitioner's or student's registration only if the Board has complied with section 157.

41 Section 156(1)(e) was inserted into the National Law in 2017.[26]

42 The relevant 'belief' described in section 156(1)(e) was identified by Niall JA in Medical Board of Australia v Liang Joo Leow[27] as follows:

The Board may take immediate action under s 156(1)(e) where it reasonably believes the action is 'otherwise in the public interest'. The word 'otherwise' indicates that this sub‑section provides an additional and alternative source of power that is available where none of the other specific circumstances has been established. The subject matter of the relevant belief is whether the taking of immediate action is in the public interest.

43 The phrase 'public interest' was explored by Niall JA, where he stated that public interest[28]

lacks a fixed and precise content, and no singular construction can be afforded. In Lal, the Court of Appeal described the public interest as a 'protean concept', the meaning of which depended on context and not on any predetermined generic criteria.

44 Section 157 of the National Law provides for a show cause process that must be followed by a National Board that is contemplating suspending or imposing a condition on registration.

45 Dr Spencer filed a notice of appeal on 20 September 2024, appealing the Tribunal's Orders.[29] The notice of appeal was later amended and filed on 30 May 2025. Dr Spencer then filed a written outline of submissions on 7 August 2025, which consolidated the extensive questions of law in the amended notice of appeal.

46 The submissions addressed eight questions of law, seven of which are said to be questions consolidated from the 29 questions set out in the amended notice of appeal. For the purpose of clarity, I will rely on the consolidated questions of law from the lengthy written submissions. The consolidated questions of law are as follows:

(a) First, did VCAT err in law by relying on coronial findings and evidence tainted by fraud, perjury, and collusion, while refusing to examine or remediate the underlying evidentiary defects, thereby breaching principles of natural justice and jurisdiction?[30]

(b) Second, did VCAT and the MBA breach obligations under section 109 of the VCAT Act and the rules of natural justice by withholding exculpatory evidence, permitting post‑hearing submissions, making fraudulent allegations, making frivolous and vexatious allegations, and thereby undermine procedural fairness?[31]

(c) Third, did VCAT commit error in law by admitting irrelevant or incompetent expert evidence while ignoring or failing to properly weigh mandatory medical and legal evidence exonerating Dr Spencer?[32]

(d) Fourth, did VCAT err in its public interest assessment by relying on untested media, disregarding evidence of community contribution, and mishandling relevant case law on proportionality and regulatory precedent?[33]

(e) Fifth, did VCAT's management of post‑hearing procedure, including section 51A reconsideration and admission of new material, breach the requirements of procedural fairness and statutory finality?[34]

(f) Sixth, did VCAT err by making adverse inferences about Dr Spencer's insight and fitness while ignoring exonerating clinical evidence, psychiatric assessments, and substantial fraud allegations?[35]

(g) Seventh, did VCAT err in law by relying on the Coroner's tainted 'family‑violence' (FV) findings to suspend Dr Spencer, while refusing to examine the uncontested evidence that those FV findings were procured through fraud, perjury and jurisdictional over‑reach?[36]

(h) Eighth, 'VCAT's Reliance on Dr Gunja's inadmissible expert testimony'[37] constituted jurisdictional error.

47 Dr Spencer prepared lengthy submissions as to the Tribunal's Orders.

48 The Board submitted that none of the consolidated questions, nor the amended notice of appeal itself, precisely identify any alleged error of law committed by the Tribunal and therefore the Court's jurisdiction is not enlivened. Helpfully, the Board did provide its analysis of the matters raised by Dr Spencer, notwithstanding the Board asserted the Court's entitlement to refuse leave.

49 For the reasons which follow, I have formed the view that none of the grounds of appeal support a question of law which has a real prospect of success.[38]

50 Dr Spencer's first consolidated question of law is:

(a) Did VCAT err in law by relying on coronial findings and evidence tainted by fraud, perjury, and collusion, while refusing to examine or remediate the underlying evidentiary defects, thereby breaching principles of natural justice and jurisdiction?

51 Dr Spencer asserted several fundamental issues underpinning the first consolidated question of law:

(a) First, the Tribunal 'abdicated' its fact‑finding duties to the Coroner's Court.

(b) Second, the Tribunal failed to properly consider Dr Spencer's submissions as to alleged fraud on behalf of the Coroner and thereby denied him procedural fairness.

(c) Third, the Tribunal 'improperly relied on fraudulently procured expert evidence' in considering evidence from Dr Cross and Dr Gunja.

(d) Fourth, the Tribunal incorrectly relied on 'expert opinions proving no causation; DPP[39] determinations about causation were "suppressed", [and] ANZCOR Guidelines[40] were ignored'.

(e) Fifth, the Tribunal denied procedural fairness by allowing 'post‑hearing submissions without adequate right of reply' and by failing to 'address Dr Spencer's comprehensive fraud evidence'.

(f) Sixth, the Tribunal erred by not applying the 'Briginshaw standard'.[41]

(g) Seventh, the Tribunal's 'public interest assessment [was] based on corrupted findings.'

(h) Eighth, the illegality of the various findings of the Coroner.

52 The Board submitted that, contrary to Dr Spencer's submission, the Tribunal did not err in abdicating its fact‑finding role. Dr Spencer's argument rests on an incorrect premise that the Tribunal was required to make factual findings, on the balance of probabilities, as to contested factual issues.

53 I find that Dr Spencer's assertion is misconceived. The Tribunal was not required to make a factual finding on the contested factual issues. The Tribunal's jurisdiction was engaged by Dr Spencer's request for a review of the Board's decision. Thus, the Tribunal did not err in its reliance on the Coroner's findings.

54 Dr Spencer contends that the Tribunal has been procedurally unfair as it failed to properly consider his submissions as to the alleged fraud by the Coroner.

55 The Board submitted that the fact that the Tribunal's reasons do not comprehensively address the merits of Dr Spencer's submissions alleging fraud does not mean that it did not consider those submissions.

56 The better inference, in my assessment, is more likely that the Tribunal considered the submissions made by Dr Spencer, but did not consider that it needed to resolve the factual contentions raised in order to makes its determination.[42] I discern no error in failing to address Dr Spencer's submissions in greater detail that it has done in its reasons.

57 Concerning the third issue raised in the context of the consolidated first question of law, Dr Spencer submitted that the Tribunal 'improperly relied on fraudulently procured expert evidence', that evidence being of Dr Cross and Dr Gunja.

58 I see no error in this respect. As is repeated throughout this judgment, the Tribunal is not bound by rules of evidence and may inform itself on any matter as it sees fit.[43] Where relevant considerations are not specified, it is for the Tribunal to determine what material is relevant and the weight to be afforded to that material.[44]

59 I note the predilection of Dr Spencer, throughout his submissions, to categorise any evidence or actions taken that he disagrees with as 'fraudulent'. Such emotive and coloured language no doubt comes from a place of frustration with the process and situation in which Dr Spencer finds himself, but adds nothing to the strength of his submissions.

60 Dr Spencer's fourth issue of 'expert opinions proving no causation; DPP determinations about causation were "suppressed", [and] ANZCOR Guidelines were ignored' is misconceived.

61 The Board submitted that there was no error established by these complaints because the DPP had decided not to prosecute Dr Spencer.[45] Further, the Board contended that the ANZCOR Guidelines were considered by the Tribunal, and the Tribunal did not make any finding about Dr Spencer's conduct causing Ms Spencer's death and did not need to make any such finding.

62 I agree with the Board that there is no error identified by this submission. Further, it is a matter for the Tribunal to decide what material is relevant and the weight to be afforded to it. The Tribunal did not need to address any conflicting expert evidence on the question of whether Dr Spencer conduct caused Ms Spencer's death and it did not need to make any such finding.

63 Dr Spencer contends that he was denied procedural fairness on numerous occasions by the Tribunal. Concerning the 'post‑hearing submissions without adequate right to reply' allegation, Dr Spencer was provided the opportunity to make submissions in response to the Board's proposed reconsidered decision, and again before the Tribunal after the Board made its reconsidered decision. He made submissions at both opportunities. Hence, I see no denial of procedural fairness on this ground. Lastly, concerning the denial of procedural fairness to Dr Spencer by the Tribunal through its failure to consider the comprehensive fraud evidence, as I have addressed above, the Tribunal did not need to deal with this evidence in any greater level of detail that it actually did.

64 Dr Spencer submits, in his sixth issue, that the Tribunal failed to apply the 'Briginshaw standard'. As discussed above, the Tribunal was not required to make findings on contested matters of fact on the balance of probabilities (to the 'Briginshaw standard' or otherwise). The Tribunal did have to form a view as to whether immediate action in the public interest should be taken, and did so carefully and with due regard to the seriousness of the matters it had before it. In that regard, it made no error as to the standard of proof to which it was required to satisfy itself that section 156(1)(e) of the National Law was made out and immediate action was justified.

65 The seventh issue Dr Spencer raises in regard to the first consolidated question of law, is whether the Tribunal's 'public interest assessment [was] based on corrupt findings'. This appears to reattempt to litigate issues raised previously under this consolidated question of law (and throughout the other consolidated questions of law). The Tribunal's 'reliance on disproven causation' and 'flawed expert evidence' has been addressed above.

66 Concerning the eighth issue raised by Dr Spencer, it is outside this Court's jurisdiction to review the lawfulness of the Coroner's findings in this proceeding.[46]

67 The issues and first consolidated question of law are misconceived. The grounds relied upon have no substance.

68 Dr Spencer's second consolidated question of law asserts:

(a) Did VCAT and the MBA breach obligations under section 109 of the VCAT Act and the rules of natural justice by withholding exculpatory evidence, permitting post‑hearing submissions, making fraudulent allegations, making frivolous and vexatious allegations, and thereby undermine procedural fairness?

69 Dr Spencer raises three issues concerning his second consolidated question of law. He contends that the Board:

(a) breached its disclosure obligations under section 49 of the VCAT Act by 'not disclosing DPP review from 2022';

(b) made 'fraudulent allegations' about Dr Spencer's accounts regarding his drug‑use changing; and

(c) engaged in a conspiracy with the Coroner's Court of Victoria.

70 There is no substance to any of these grounds. The reference to section 109 of the VCAT Act is erroneous. That section deals with the power of the Tribunal to award costs.

71 First, the Board did disclose the fact that Victoria Police had advised AHPRA, on 9 March 2022, that charges were not at that stage being contemplated.[47] Section 49 of the VCAT Act refers to the obligation of a decision-maker to provide the Tribunal with the relevant material to enable it to make the correct or preferable decision and so that the parties know the issues to be considered by the Tribunal. There is no breach of section 49 by this allegation.

72 Second, the Tribunal made no findings that Dr Spencer's accounts regarding his drug‑use had changed, and in any event, the Board's submissions to that effect was properly made.[48]

73 The allegations of conspiracy are without merit. Regardless, the allegations were immaterial to the Tribunal's review of the Board's decision.

74 The allegation of breach of procedural fairness for the Tribunal's 'post‑hearing evidence admission without adequate right to reply' is without foundation. The Board did file material after the oral hearing. However, Dr Spencer was afforded a right to reply as evidenced by the fact that:

(a) he was copied into the Board's emails filing that material;

(b) he was provided the material with the Board's proposed reconsidered decision and the chance to respond to it before the Board made the reconsidered decision; and

(c) after the Board made the reconsidered decision, the Tribunal made orders providing Dr Spencer the opportunity to file further written submissions, which opportunity he availed himself of, by filing submissions on 12 August 2025.

75 Dr Spencer also submits that the Tribunal and Board suppressed exculpatory evidence. Each of these claims amount to a vehement disagreement of the merits of the Tribunal's decision, rather than its legality, and are without substance. A disagreement as to the merits of the Tribunal's decision is not an error of law.

76 Dr Spencer's consolidated third question of law, as I understand it, is whether the Tribunal erred in admitting irrelevant or incompetent expert evidence while ignoring or failing to properly weigh mandatory medical and legal evidence exonerating Dr Spencer.

77 This question is without foundation. The Tribunal is not bound by the rules of evidence or any practices or procedures applicable to the courts, except to the extent that it adopts those rules, practices and procedures. Dr Spencer's assertion that the Tribunal failed to implement the Evidence Act 1995 (Vic) or any other rule of evidence is misconceived. The Tribunal has a discretion to the evidence to be considered in a matter and the weight to be afforded to that evidence. The Tribunal is not limited by evidentiary laws.

78 Dr Spencer assertion of the consideration of irrelevant or incompetent expert evidence, largely refers to Dr Gunja's evidence being accepted by the Tribunal. I note that the hearing in the Tribunal was heard by a panel comprising of two medical practitioner Members and a legal Member, therefore, three Members who were well equipped to weigh and analyse the evidence put before them. This criticism by Dr Spencer of contrary evidence is demonstrative of his disagreement with any of the evidence given contrary to him.

79 Dr Spencer's third question of law is whether the Tribunal incorrectly equated the DPP's conclusion of 'absence of sufficient medical evidence' with 'insufficient evidence for criminal conviction.'

80 The DPP's view that there was insufficient evidence to found a successful conviction is not determinative of absolution from all responsibility nor does it preclude action by the Board on the public interest ground. It is determinative of the DPP's decision not to prosecute and it provided an explanation as to why it took that view. The Tribunal's characterisation of the effect of the decision not to charge Dr Spencer with any criminal offence was accurate.

81 This consolidated question of law does not establish legal error.

82 Dr Spencer's fourth consolidated question of law is:

(a) Did VCAT err in its public interest assessment by relying on untested media, disregarding evidence of community contribution, and mishandling relevant case law on proportionality and regulatory precedent?

83 Dr Spencer raises five new issues concerning this consolidated question of law. The issues are as follows:

(a) First, the Tribunal erred by 'relying on untested media'. The Tribunal considered the 'impact' of media reporting without considering whether the media reporting was true.

(b) Second, the Tribunal's reasoning process involved it 'mishandling relevant caselaw'.

(c) Third, the Tribunal made errors of fact in finding that, on his return to practise in 2023, he had not yet returned to full time practise and had only been in practise for a short period of time after he was re‑registered.

(d) Fourth, the Tribunal failed to have regard to the medical services he could provide to the community in assessing public interest and the fact that he had practised until 2015.

(e) Fifth, the Tribunal gave 'inadequate weighting' to various factors.

84 In relation to the first issue raised, no error is established. A fair reading of the Tribunal's decision demonstrates that the Tribunal considered the facts of the media report,[49] rather than relying on its content. Further, the Tribunal fairly stated that public confidence 'is to be assessed on the basis that the public will be informed of the whole story, fairly told, as far as that is possible at the relevant time'.[50] The Tribunal correctly adhered to authority[51] in its reasoning and did not err in reaching its conclusion.

85 On the second issue raised by Dr Spencer, it is incorrect that the Tribunal failed to have regard to the cases Farshchi v Medical Board of Australia (Review and Regulation)[52] and Farshchi v Chinese Medicine Board of Australia (Review and Regulation),[53] and are referred to in several paragraphs and footnotes from the Tribunal's decision.[54] The Tribunal was not required to consider whether the Coroner's findings in a different case were more serious than the findings made by the Coroner in respect of Ms Spencer's death. As the Tribunal noted, the question of whether the Tribunal reasonably believes it is in the public interest to take immediate action will depend on the particular circumstances of each case. It is not the facts or findings in respect of a different Coroner's decision that are binding on the Tribunal for the circumstances it had before it in Dr Spencer's case.

86 In relation to the third issue asserted by Dr Spencer, these alleged errors are not errors of law, but of fact. No legal error arises. In particular:

(a) Dr Spencer says that he had been back at work 'from September 2022 to March 2023'. The Tribunal did not err in characterising this as a 'short period of practice'; and

(b) Dr Spencer asserts that in addition to consulting more than three days a week, he also performed reporting duties for approximately one and half days a week and one day a week for required professional development, thus exceeding the five day working week. Therefore, the Tribunal erred in finding that Dr Spencer was not working full‑time. I see no error in the Tribunal's findings. Dr Spencer was not practicing medicine on a full‑time basis.

87 These facts are peripheral and not germane to the determination of the Tribunal and, in any event, there is no error of law in a finding of fact which is in error.

88 The fourth issue which was raised was whether the Tribunal failed to have regard to the medical services he could provide to the community in assessing public interest, and the fact that he had practised until 2015. This issue is completely misconceived:

(a) The Tribunal took into account the medical services Dr Spencer could provide in assessing the public interest at [167]-[172] of its reasons.

(b) The Tribunal also took into account that Dr Spencer had practised until 2015.

89 The fifth issue of 'inadequate weighting' of evidence and factors by the Tribunal is not a question of law. Again, the weight to be afforded evidence or relevant consideration is a matter for the Tribunal.

90 I agree with the submission made on behalf of the Board on this question. The issues and consolidated question of law raised by Dr Spencer are without merit. No legal error arises.

(a) Did VCAT's management of post‑hearing procedure, including section 51A reconsideration and admission of new material, breach the requirements of procedural fairness and statutory finality?

92 Dr Spencer submits there are three relevant issues to this consolidated question of law:

(a) First, the Tribunal was prohibited by section 51(2) of the VCAT Act from inviting the Board to reconsider the decision under section 51A after the Tribunal had held a final hearing but before it made final orders.

(b) Second, the Tribunal denied Dr Spencer procedural fairness by accepting and considering adverse material without providing him a chance to meet that material.

(c) Third, whether the Board's 'post‑section 51A submission introduced fundamentally different grounds, effectively constituting a new case rather than genuine consideration of the original decision.' Three aspects of the Tribunal's reasons raise concern for Dr Spencer, being:

(i) Dr Gunja's report;

(ii) Dr Spencer's demonstrated lack of insight into the concerns raised as to his conduct on the morning of Ms Spencer's death; and

(iii) evidence of email communications from Dr Spencer during the review proceeding.

93 The Tribunal was not prohibited by section 51(2) of the VCAT Act to invite the Board to reconsider its decision. Section 51(2) does not contain any such prohibition nor can any similar prohibition be found. The express terms of section 51A(1) provide that 'at any time in a proceeding for review of a decision, the Tribunal may invite the decision‑maker to reconsider the decision'. Hence, it was open to the Tribunal to exercise the power in section 51(A) of the VCAT Act in the manner that it did. The proceeding was not complete.

94 On the second issue, Dr Spencer submits that he was denied procedural fairness by the Tribunal accepting and considering adverse material without providing him a chance to meet that material. As set out above, Dr Spencer was provided with the opportunity to make submissions before the Board made the reconsidered decision, and again after the Board's reconsidered decision was provided to the Tribunal. He had the opportunity to meet all material considered by the Tribunal. I reject this submission.

95 On the third issue raised, the Board asserts that the same ground was pursued in the original decision and in the affirmed decision, being that the 'taking of immediate action was otherwise in the public interest'.

96 I agree that the same ground, being 'the taking of immediate action was otherwise in the public interest', is and remained the ground on which the decision of the Board was made and was the subject matter of the review.

97 Section 51A(2) provides that 'on being invited by the Tribunal to reconsider a decision, the decision‑maker may affirm the decision, vary the decision, or set aside the decision and substitute a new decision for it'. The reconsideration by the Board did not vary the initial decision. Even if it had done so, the proceeding would continue, and been taken to be a proceeding for review of the decision as varied by operation of section 51A(3).

98 I considered the Board's reference to Kozanoglu v Pharmacy Board of Australia ('Kozanoglu')[55] as not apposite to the grounds raised by Dr Spencer. Kozanoglu considered the nature of a Tribunal review of a decision to take immediate action under section 156(1)(a) of the National Law and whether the type of hearing was an appeal, a rehearing de novo or otherwise.

1. ... The appeal to a responsible tribunal under the National Law is neither an appeal in the strict sense, nor a rehearing de novo. It is rather a hybrid, whereby the material to be considered is confined to that placed before the initial decision‑maker, but with the opportunity available to both parties to present additional evidence which bears directly upon that decision as originally taken. It is not 'open slather', but nor is it an appeal confined to error.

100 The Court concluded in Kozanoglu that a proceeding for review of a decision to take immediate action under section 156(1)(a) is not a full re‑hearing de novo, but a hybrid, in which the Tribunal should take into account the evidence that was before the original decision‑maker and 'also any additional evidence that bears directly upon the position as it was when the original decision was made'.[56]

101 The Board raised the possibility that, based on the Kozanoglu reasoning, the Tribunal may have been prohibited from considering new information. I do not consider that this proposition is properly raised on the facts and the grounds relied upon by Dr Spencer.

102 First, a plain reading of section 51A(1) demonstrates that the Tribunal had the power to refer the decision to the Board at any time in a proceeding. The proceeding was not at an end when it did so. There was no change to the Board's decision so the original decision was the decision under review. Consistent with the principles of procedural fairness, the Tribunal gave Dr Spencer an opportunity to respond.

103 Even if the Tribunal might have been precluded from considering some of the new material in reviewing the original decision, I consider that the Board was not precluded from considering any new material in the decision it made under section 51A. Rather, the power to take immediate action is one properly construed as being open to the Board to take from time to time.

104 The Tribunal was therefore not precluded from considering the 'new' material when it reviewed the Board's reconsidered decision. That is, it was the Board's reconsidered decision that the Tribunal was ultimately tasked with reviewing, and all of the 'new' material was before the Board when it made the reconsidered decision. Even if a section 51A invitation had not been given to the Board, and even if Kozanoglu applies to limit the power of the Tribunal to consider new evidence:

(a) Dr Gunja's report is material that bears directly on the position as it was at the time of the original decision and could therefore be taken into account by the Tribunal; and

(b) the findings of the Board and Tribunal in respect of Dr Spencer's insight were not 'evidence' but findings based on the assessment of evidence.

105 Concerning the email correspondence, if, contrary to the above analysis, the Tribunal was not entitled to have regard to the emails, any error in doing so was immaterial, in circumstances where:

(a) the Tribunal expressly stated, in respect of the emails, that they were not 'determinative to our decision'; and

(b) at [175] of the Tribunal's reasons, it sets out the Tribunal's critical dispositive reasoning and refers to the various factors militating in favour of and against taking action in the public interest. Those factors militating in favour of taking action are expressed to be the actors under the heading 'Impact on public confidence'. The emails and the Tribunal's assessment of them did not form part of that section and, thus, when the reasons are considered as a whole, can be seen to have not formed part of the balancing exercise the Tribunal undertook when deciding whether it was in the public interest to take immediate action. Any error in considering the emails was therefore immaterial.

106 I do not find any error arising from the grounds to Question 5.

107 Dr Spencer's sixth consolidated question of law is:

(a) Did VCAT err by making adverse inferences about Dr Spencer's insight and fitness while ignoring exonerating clinical evidence, psychiatric assessments, and substantial fraud allegations?

108 Dr Spencer raises one issue in relation to the consolidated sixth question of law:

(a) The Tribunal erred in finding that his response to the Coroner's findings 'raise[s] serious questions about [his] fitness ... not only because of what the uncontentious facts indicate, but also because of what appears to be a blindness on Dr Spencer's part now to the apparent flaws in his actions then'.

109 It appears from this question of law and corresponding ground is that Dr Spencer seeks a merits review of the Tribunal's reasons, rather than challenge its legality. Only the latter is open to me on appeal. The formulation of the ground demonstrates that Dr Spencer challenges the merits finding against him and does not allege that there is no evidence to support the finding.

110 Dr Spencer's assertion that the Tribunal has made an adverse finding about his fitness is misguided. It is open to the Tribunal to observe the behaviour and conduct of Dr Spencer. The Tribunal's observations are clearly founded on the strident denials of any wrongdoing by Dr Spencer during the Board's investigation and to the Tribunal in submissions. The Tribunal has not relied upon fraudulent allegations and ignored 'exonerating clinical evidence' but rather on its observation of Dr Spencer in the process of litigation.

111 This question of law and ground raised in issue is without merit.

112 The seventh consolidated question of law states:

(a) Did VCAT err in law by relying on the Coroner's tainted 'family‑violence' (FV) findings to suspend Dr Spencer, while refusing to examine the uncontested evidence that those FV findings were procured through fraud, perjury and jurisdictional over‑reach?

113 Dr Spencer submitted one ground in relation to this question of law:

(a) The Tribunal was not entitled to take into account the Coroner's findings in respect of family violence.

114 The Tribunal has a discretion to the evidence to be considered in a matter and the weight to be afforded to that evidence. Thus, the Tribunal is entitled to have regard to the Coroner's findings.

115 Further, when reading the Tribunal's reasons fairly and as a whole, the Coroner's family violence findings did not materially form part of the Tribunal's reasons.

117 On this consolidated question of law, Dr Spencer asserts that the Tribunal erred in taking into account Dr Gunja's evidence and therefore this constitutes jurisdictional error.

118 The consideration of evidence and the weight to be afforded to such evidence is a matter for the Tribunal's discretion. The rules of evidence do not apply in the Tribunal. Therefore, the Tribunal could not have erred in failing to apply evidentiary 'rules'.

119 Dr Spencer was afforded the opportunity to respond to Dr Gunja's evidence on two occasions. First, when the Board made the reconsidered decision and again before the Tribunal made its final orders.

120 The core of Dr Spencer's complaint concerning the merits of Dr Gunja's evidence is that the evidence of Dr Greene and Dr Francis should have been preferred to that of Dr Gunja. This complaint was on the basis that the evidence of Dr Greene and Dr Francis comprised of 'expert opinions negating causation'.[57]

121 I reject this contention. Dr Gunja's evidence was not relied upon to 'establish causation', being to establish that Dr Spencer's actions or inactions caused Ms Spencer's death. Rather, the Tribunal relied upon on Dr Gunja's opinion that 'immediate specialised intervention and prompt transportation to the ED would have afforded Ms Spencer the best chance of survival'.[58] This is entirely consistent with the opinion of Dr Greene where he states that:[59]

In this case, I would think that the best chance of the patient surviving would have been for any person who was there are the time of the cardiac arrest, to immediately call an ambulance and then commence CPR. I cannot say that the patient would have survived if that had happened, but the chances of survival would have been higher if an ambulance had been called immediately.

122 The complaint about Dr Gunja's evidence in this regard is misguided.

124 In order to succeed on an application for leave to appeal orders made by the Tribunal pursuant to section 148 of the VCAT Act, an applicant must satisfy the Court that there is a question of law which has a real prosect of success.[60]

125 The consolidated questions of law and the accompanying grounds are in many aspects duplicated and repetitious. I have endeavoured to address them as comprehensively as possible. It is clear to me from my observations of Dr Spencer's written submissions, his demeanour and presentation, a substantial effort has gone into addressing what he believes is an injustice done to him in the Board taking the 'immediate action' step. The nature of the review by the Tribunal (which is the subject of this appeal) was and is limited to reviewing the 'immediate action' taken by the Board. What further other disciplinary action or steps, if any, taken by the Board or Dr Spencer are not matters before this Court at this time.

126 For the reasons set out above, I have concluded that there is no real prospect of success in respect of each of the questions raised and on the grounds relied upon.

[1] The Applicant throughout his materials refers to the Respondent as the 'MBA'. For the purposes of clarity in this judgment, the Board and the MBA are the same entity.

[2] By virtue of section 4 of the Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic), the Health Practitioner Regulation National Law Act 2009 (Qld), as is in force from time to time, applies as a law of Victoria.

[3] Dr Spencer did not apply for renewal of his registration prior to its expiry on 30 September 2015. Accordingly, pursuant to section 108(2)(a) of the National Law, his registration was taken to continue in force until 30 October 2015 and lapsed on 1 November 2015.

[4] On 9 March 2022, AHPRA was advised by Victoria Police that charges were not at that stage being contemplated in relation to negligent manslaughter.

[5] Finding into Death Following Inquest: Inquest into the Death of Mayumi Spencer (Coroners Court of Victoria, Judge Cain, State Coroner, 8 June 2023). The Coroner published an amended determination on 13 July 2023, [55].

[6] Pursuant to section 156(1)(e) of the National Law

[7] Pursuant to section 157 of the National Law.

[8] Pursuant to section 156(1)(e) of the National Law.

[10] Affidavit of Alexandra Lambert (filed 3 July 2025, S ECI 2024 05394, Supreme Court of Victoria) 1751. Errors in original.

[11] On 12 August 2024, the Tribunal made orders bringing the date of the hearing on the papers forward.

[12] These submissions were not served on the Board during the proceeding.

[13] Spencer v Medical Board of Australia (Review and Regulation) [2024] VCAT 833, [1]-[20] ('Reasons').

[26] Health Practitioner Regulation National Law and Other Legislation Amendment Act 2017 (Qld) section 24.

[27] [2019] VSC 532, [74].

[29] Pursuant to section 117(6) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the Tribunal's reasons for its orders form part of the order.

[30] Combines questions of law 1, 3, 8, 12, 15, 19, 26 and 27 of the amended notice of appeal.

[31] Combines questions of law 4, 7, 10, 14, 15, 18 and 23 of the amended notice of appeal.

[32] Combines questions of law 2, 3, 4, 5, 8, 9, 11, 22, 24, 25 and 26 of the amended notice of appeal.

[33] Combines questions of law 20, 21 and 28 of the amended notice of appeal.

[34] Combines questions of law 6, 15, 17, 18 and 23 of the amended notice of appeal.

[35] Combines questions of law 21, 27 and 29 of the amended notice of appeal.

[36] Formerly question of law 13 of the amended notice of appeal.

[37] Combines questions of law 3, 5, 6, 11, 25 and 26 of the amended notice of appeal.

[38] I generally agree with the submissions made on behalf of the Board in respect of each of the questions and grounds raised by Dr Spencer. For the sake of brevity, I have not repeated the Board's submissions unless there is something further to add.

[40] Australian and New Zealand Committee of Resuscitation Guidelines.

[41] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

[43] Victorian Civil and Administrative Tribunal Act 1998 (Vic) section 98.

[44] Sean Investments Pty Ltd v MacKellar [1981] FCA 191; (1981) 38 ALR 363 (Deane J).

[46] Dr Spencer challenged the Coroner's findings in Spencer v Coroners Court of Victoria [2024] VSC 757 (Richards J). Her Honour dismissed the appeal.

[47] See for example the Board's outline of submissions filed 28 July 2023 in response to Dr Spencer's stay application, [7].

[48] The Board's submission to this effect was based on paragraph 4 of a file‑note of a telephone conversation between Dr Spencer and an AHPRA officer on 19 January 2015, pursuant to the Affidavit of Alexandra Lambert (filed 3 July 2025, S ECI 2024 05394, Supreme Court of Victoria) 187. That note records the AHPRA officer stating: 'I told him that we had received a phone call from Vic Police advising us that he had admitted to cocaine use. Dr Spencer said that is not true and he has not admitted to using cocaine.' There are two interpretations of the file‑note that are open: that Dr Spencer was saying that it was not true that he had used cocaine (a position which later changed); or that he was saying that he had not told Victoria Police that he had used cocaine (in which case, his position in this respect would not have changed). The Board did not engage in any type of fraud or other impropriety in advancing the first interpretation.

[51] Medical Board of Australia v Liang Joo Leow [2019] VSC 532, [94]; Medical Practitioners Board of Victoria v Lal [2009] VSCA 109; (2009) 23 VR 702, [60]-[62].

[52] [2018] VCAT 1619.

[53] [2018] VCAT 1617. There are three related decisions concerning the same alleged conduct by Dr Farshchi because he held multiple registrations; allegations were brought by the three National Boards involved.

[54] Reasons [95], [99], footnotes 18 and 21.

[55] [2012] VSCA 295; (2012) 36 VR 656 ('Kozanoglu').

[57] Applicant's submissions filed 7 August 2025, 107.

[59] Dr Spencer's Affidavit (filed 4 June 2025, S ECI 2024 05394, Supreme Court of Victoria) 2357-2358. See email from Dr Green dated 22 December 2021. Dr Francis did not give a contrary view on this question but states, inter alia, '[i]t is beyond my area of expertise to say whether [Ms] Spencer had the possibility of survival with emergency assistance.'

[60] A real prospect of success has been interpreted to be 'real' as opposed to 'fanciful' chance of success, unless it were hopeless or bound to fail. See Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd [2013] VSCA 158; (2013) 42 VR 27, [23]-[26].