Applicant v Respondent

1 This is an application for leave to appeal an order of the Victorian Civil and Administrative Tribunal ('VCAT'), brought by the Medical Board of Australia (the 'Board'). The appeal relates to whether the privilege against exposure to penalties applies in proceedings conducted before VCAT under Part 8 of the Health Practitioner Regulation National Law (the 'National Law').[1]

2 The respondent, Dr Simon Gibbs, is a medical practitioner with specialisation in haematology. On 31 January 2025, the Board filed a referral of a matter regarding Dr Gibbs to VCAT, pursuant to s 193(1) of the National Law.

3 On 12 May 2025, VCAT made timetabling orders, including an order that:

1. serve any material on which the respondent intends to rely (if any); and
2. file and serve the respondent's Statement of Facts, in which the respondent adds to the applicant's Statement of Facts:

(i) his response in the relevant column to indicate whether he admits or denies each of the applicant's claimed facts; and

(ii) a further section indicating any other facts which the respondent will seek to prove, with a column for the applicant to indicate whether it admits or denies those claimed facts.

4 On 6 August 2025, the matter was listed for a directions hearing. After being informed that Dr Gibbs was adopting a 'Towie'[2] position, VCAT made orders that:

1. Noting that at this stage, the respondent is adopting a 'Towie' position (that is, invoking his right to penalty privilege in relation to the new allegations brought against him in 2025), order 3 of 12 May 2025 is vacated.
2. By 27 August 2025, the respondent is to file and serve an outline of argument which identifies in broad terms the issues for determination.

5 By notice of appeal filed 3 September 2025, the Board seeks leave to appeal under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (the 'VCAT Act') from order 1 made by VCAT on 6 August 2025 on two grounds:

(a) VCAT erred in law by making order 1 and vacating order 3 of 12 May 2025, on the basis that the respondent was entitled to rely on penalty privilege in the proceedings before VCAT, when no such privilege applied ('Ground 1'); and

(b) in the alternative, if penalty privilege did apply to the proceedings before VCAT, VCAT erred in law and misapplied the privilege in concluding that it required vacating order 3 of 12 May 2025 ('Ground 2').

6 The Board relied on an affidavit of Emily Rachael Kidd, solicitor, affirmed 10 September 2025, and the exhibits therein.

7 Dr Gibbs relied on an affidavit of Mia Campbell, solicitor, affirmed 21 October 2025, and the exhibits therein.

8 The National Law is a uniform scheme for the regulation of a number of health professions adopted across all Australian states and territories. Under the National Law, the Board bears responsibility for the medical profession.

9 Section 3A of the National Law sets out the guiding principles of the national registration and accreditation scheme. The paramount guiding principles are the protection of the public and public confidence in the safety of services provided by registered health practitioners and students.

10 Part 8 of the National Law confers on the Board powers and functions with respect to the health, performance and conduct of registered medical practitioners. It provides a process for the Board to receive notifications about medical practitioners and to investigate those notifications.

11 Under s 193(1), if the Board forms a reasonable belief that a medical practitioner has behaved in a way that constitutes professional misconduct, the Board must refer the matter to a responsible tribunal. Pursuant to s 6 of the Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic), VCAT is the responsible tribunal for the purposes of the National Law as adopted in Victoria.

12 Section 196 of the National Law sets out what a responsible tribunal may decide after hearing a matter, including the range of sanctions that can be imposed.

13 Section 198 provides that the National Law 'applies despite any provision to the contrary of the Act that establishes the responsible tribunal but does not otherwise limit that Act'.

14 Section 43 of the VCAT Act makes it clear that the original jurisdiction, rather than the review jurisdiction, of VCAT is invoked by a referral under an enabling enactment such as the National Law.

15 Section 97 of the VCAT Act provides that VCAT 'must act fairly and according to the substantial merits of the case in all proceedings'.

16 Section 98 sets out the general procedure of VCAT, including that it is 'bound by the rules of natural justice' but 'not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures'.

17 Sections 105 and 106 are important in the context of this appeal.

105 Rule against self-incrimination does not apply

(1) A person is not excused from answering a question or producing a document in a proceeding on the ground that the answer or document might tend to incriminate the person.

(2) If the person claims, before answering a question or producing a document, that the answer or document might tend to incriminate them, the answer or document is not admissible in evidence in any criminal proceedings, other than in proceedings in respect of the falsity of the answer.

(1) Except as provided by section 80(3) or 105, a person is excused from answering a question or producing a document in a proceeding if the person could not be compelled to answer the question or produce the document in proceedings in the Supreme Court.

(2) The Tribunal may require a person to produce a document to it for the purpose of determining whether or not it is a document that the Tribunal has power to compel the person to produce.

The Tribunal may give directions under this section requiring a party to produce a document or provide information in a proceeding for review of a decision despite anything to the contrary in section 106(1) or any rule of law relating to privilege or the public interest in relation to the production of documents.

19 In order to determine the outcome of this appeal, there are a number of relevant issues:

(a) whether the privilege against exposure to penalties has operation outside judicial or curial proceedings;

(b) whether VCAT proceedings under Part 8 of the National Law are curial;

(c) whether there is a statutory basis for the application of the privilege against exposure to penalties; and

(d) the scope of the privilege against exposure to penalties.

Whether penalty privilege has operation outside judicial or curial proceedings

20 The Board submitted that penalty privilege is not a substantive rule of law and does not apply outside of judicial proceedings, relying on a passage from the High Court decision of Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission ('Daniels') that 'there seems little, if any, reason why that privilege should be recognised outside judicial proceedings'.[3]

21 Dr Gibbs submitted that the availability of penalty privilege is not limited to judicial proceedings heard in a court of record and that it is necessary to have regard to whether the relevant proceedings are curial in nature. Further, the passage from Daniels ought to be understood in the context of what was under consideration in that instance, namely the investigative powers of a body as opposed to subsequent proceedings in which allegations or charges must be specified.

22 Dr Gibbs further submitted that, in contrast to matters where penalty privilege has not been extended to non-curial settings, a referral under s 193 is not:

(a) an investigative step prior to the institution of proceedings;[4]

(b) an internal disciplinary decision of a non-curial entity;[5]

(c) a merits review of a prior decision in which a tribunal stands in the shoes of a previous decision-maker;[6] or

(d) an inquisitorial process in which a decision-maker has investigative powers and does not decide rights and liabilities.[7]

23 Both parties agreed that there was no binding authority that definitively determined the outcome of this issue, but there were a number of relevant obiter dicta passages in the authorities to which regard should be had. Those passages include statements from the High Court in 2002 in Daniels and in 2004 in Rich v Australian Securities & Investments Commission ('Rich'),[8] which the Board submitted were 'seriously considered dicta' of the kind which should be followed unless and until departed from by decision of the High Court.[9]

24 In Daniels, the plurality acknowledged that penalty privilege 'has long been recognised by the common law and is no longer simply a rule of equity relating to discovery'.[10] But they cast doubt on whether penalty privilege is a substantive rule of law that has application outside judicial proceedings, stating:

In Naismith v McGovern, Williams, Webb, Kitto and Taylor JJ said:

Originally orders for discovery were not obtainable at common law, except to a limited extent, and a party to a common law action who desired general discovery had to proceed by bill in equity. But the Court of Equity would not make an order for discovery or for the administration of interrogatories in favour of the prosecutor whether the prosecutor was the Crown or a common informer or any other person where the proceeding was of such a nature that it might result in a penalty or forfeiture: 'nemo tenetur seipsum prodere'. When discovery and interrogatories were provided for under the rules made under the Judicature Act the same principle was applied.

Today the privilege against exposure to penalties serves the purpose of ensuring that those who allege criminality or other illegal conduct should prove it. However, there seems little, if any, reason why that privilege should be recognised outside judicial proceedings. Certainly, no decision of this Court says it should be so recognised, much less that it is a substantive rule of law.[11]

25 In reaching this view, consideration was given to earlier comments made in the High Court decision of Pyneboard Pty Ltd v Trade Practices Commission ('Pyneboard'), including comments by Mason ACJ, Wilson and Dawson JJ to the effect that they were 'not prepared to hold that the privilege [against exposure to penalties] is inherently incapable of application in non-judicial proceedings'.[12] To the contrary, Murphy J saw 'no reason for recognizing [the privileges against exposure to penalties, forfeiture and ecclesiastical censure] outside judicial proceedings'.[13]

26 Similarly, in Rich, a distinction was drawn between penalty privilege and substantive rules of law like legal professional privilege, with the plurality stating:

... As was further pointed out in the joint reasons in Daniels Corporation, the privilege against exposure to penalty now serves the purpose of ensuring that those who allege criminality or other illegal conduct should prove it. That is not to say that the privileges against exposure to penalties or exposure to forfeitures are substantive rules of law, like legal professional privilege, having application beyond judicial proceedings. In the present matter, however, the only issue is about the application of these privileges to discovery in judicial proceedings. No wider question arises.[14]

27 Kirby J,[15] in Rich, also provided the following statement of principle:

However, the privileges involved in Daniels were those against self-incrimination and suggested derogations of legal professional privilege. Those privileges are different from the penalty privilege invoked in this case. Compared to the penalty privilege, each of those privileges has a longer history in the law. Each is more fundamental to its operation. Each is reflected in universal principles of human rights. The penalty privilege is not. The penalty privilege is of a lower order of priority. It has a more recent and specialised origin and purpose in our law. It should not be blown into an importance that contradicts or diminishes the operation of the Act and the achievement of its purposes.[16]

28 In Australian Securities and Investments Commission v Mining Projects Group Ltd ('Mining Projects Group'), Finkelstein J made similar comments in the context of a civil penalty proceeding being tried in the Federal Court of Australia:

By way of introduction, it is necessary to say a word or two about each privilege. Each privilege operates to excuse a person from being compelled to answer any question or produce any document if doing so would have the tendency in one case to expose that person either directly or indirectly to a criminal charge and in the other to a penalty. Though often said to be analogous and based on the same rationale, the privileges are quite distinct. The privilege against self-incrimination is a 'fundamental ... bulwark of liberty' (Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9; (1983) 152 CLR 328 at 340) that 'protects personal freedom, privacy and human dignity' (Caltex Refining 178 CLR at 500) and is 'deeply ingrained in the common law' (Sorby v Commonwealth [1983] HCA 10; (1983) 152 CLR 281 at 309). It applies in curial proceedings, including procedures related to curial proceedings, and non-curial proceedings: Pyneboard 152 CLR at 340-341; Sorby 152 CLR at 309. By contrast, the penalty privilege is different in several fundamental respects. The penalty privilege is not a substantive rule of law: Rich v Australian Securities and Investments Commission [2004] HCA 42; (2004) 220 CLR 129 at 142, 179. It is merely a procedural rule that applies in curial proceedings to require the plaintiff to prove his case without any assistance from the defendant: Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 at 559. [17]

29 In Victoria, the leading authority is the 2008 judgment of the Court of Appeal in Towie. Towie involved an appeal from a decision of VCAT reviewing a decision of the Medical Practitioners' Board of Victoria. The Court of Appeal noted that the propriety of directions given by the Vice President of VCAT was not in issue, but

... in circumstances where the alleged breach of those directions in main part gave rise to the order now appealed against, we should indicate that, in our view, the usual directions given at VCAT, would not generally be appropriate where an applicant seeks to review disciplinary proceedings and is a person who is or may be exposed to a penalty. A party may, in such cases, be required to file written grounds and an outline of argument which identifies in broad terms what is in issue on the application for review. But it will not ordinarily be appropriate that directions be given which require the applicant for review to provide an outline of argument, or any other written material, which contains a positive assertion or denial of facts or requires an election by the applicant as to whether he or she intends to go into evidence or requires any proposed evidence the applicant intends to call to be the subject of a witness statement which must be produced and served on the other side, before the case advanced against the applicant has been completed.[18]

30 In Towie, reliance was placed on Australian Securities & Investments Commission v Plymin ('Plymin') in which Mandie J held that penalty privilege 'ought to be considered in the same light' as the privilege against self-incrimination and is therefore 'not simply a rule of evidence but a basic and substantive common law right'.[19]

31 Reliance was also placed on aspects of Mining Projects Group, but not the passage where Finkelstein J noted that penalty privilege is not a substantive rule of law and is different to the penalty against self-incrimination in several fundamental respects.

32 In Migration Agents Registration Authority v Frugtniet ('Frugtniet'), the Full Court of the Federal Court of Australia had cause to consider the question of the availability of penalty privilege in a merits review proceeding before the Administrative Appeals Tribunal (the 'AAT').[20] The Full Court adopted the reasoning in the obiter passages of Daniels and Rich set out above, describing penalty privilege as a 'lesser' privilege and the privilege against self-incrimination as a 'greater' privilege.[21] The Full Court was not prepared to determine the wider question of whether penalty privilege applies at all outside purely judicial proceedings, stating:

... it is best that this appeal is not determined on any basis wider than it needs to be. That limited approach avoids traversing decisions of non-federal intermediate appeal courts dealing with this issue in the context of non-federal tribunals, which have a very different legislative and constitutional context and may have a judicial character of a kind that cannot exist in the federal arena. It also avoids traversing, at least directly, other federal non-judicial arrangements, such as the Fair Work Commission, which are quite different in nature, operation and legislation. This Court does not need to go beyond determining the application of penalty privilege to these particular AAT proceedings and, accordingly, should not do so.[22]

33 In Rolfe v Territory Coroner, in the context of a coronial inquiry, the Northern Territory Court of Appeal stated that:

... we ... do not consider ourselves at liberty to disregard the observations made by the plurality of the High Court in Daniels, and we feel bound to conclude that penalty privilege will not apply to non-curial proceedings unless there is a foundation for applying it on proper construction of the statute which governs the conduct of the proceedings.[23]

34 I am of a similar view. I do not consider myself at liberty to disregard the relevant observations of Gleeson CJ, Gaudron, Gummow and Hayne JJ in Daniels, echoed by Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ in their joint judgment in Rich, together with Kirby J in his dissenting judgment in Rich.

35 It is also of some relevance that the decision of Mandie J in Plymin (which formed the basis of the reasoning in Towie) was delivered in February 2002, prior to the judgment of the High Court in Daniels.[24] Towie was heard subsequent to both Daniels and Rich, but the Court in Towie made no reference to the relevant passages from either Daniels or Rich.

36 Accordingly, it is appropriate for me to proceed on the basis that the privilege against exposure to penalties is not a substantive rule of law or common law immunity with application outside of judicial or curial proceedings.

37 When regard is had to the relevant statutory scheme, penalty privilege may be found to apply in a non-curial proceeding.[25] But the starting point is that it does not apply in a non-curial setting.

Whether VCAT proceedings under Part 8 of the National Law are curial

38 The Board submitted that VCAT is not a court. It is an administrative body, exercising regulatory and administrative functions as conferred upon it by the VCAT Act and the various pieces of legislation that provide it with jurisdiction. Further, following Medical Board of Australia v Kemp ('Kemp'),[26] it is clear that proceedings under Part 8 of the National Law are not curial in nature.

39 Dr Gibbs submitted that the National Law places the referral of matters under s 193 plainly into a curial setting. Although the Court of Appeal in Kemp considered the issue, the conclusions reached related exclusively to the operation of medical privilege pursuant to s 28(2) of the Evidence (Miscellaneous Provisions) Act 1958 (the 'EMP Act'). The Court did not purport to answer the much broader question of whether VCAT is engaging in a form of curial adjudication, albeit of issues outside the scope of private rights.

40 In Kemp, the Court of Appeal had cause to consider whether s 28(2) of the EMP Act applied to a disciplinary proceeding in VCAT brought against a doctor under Part 8 of the National Law.

41 Section 28(2) of the EMP Act provides that a doctor shall not, without the consent of his or her patient, 'divulge in any civil suit action or proceeding any information which [the doctor] has acquired in attending the patient and which was necessary to enable [the doctor] to prescribe or act for the patient'. The Court held that a VCAT disciplinary proceeding was not a civil proceeding for the purpose of that provision.

42 Niall JA (Maxwell P and Tate JA agreeing) relevantly concluded as follows:

I have come to the conclusion that, in hearing and determining a matter referred to it by the Board, VCAT is not involved in a process that represents a curial adjudication of private rights. That is because:

(a) the VCAT proceeding is regulatory in nature, and serves a public purpose by enforcing standards applicable to health practitioners;

(b) the proceeding is not a dispute inter partes. VCAT is hearing a matter referred to it for determination by a regulatory body that performs a public function and has no private interest in the outcome of the proceeding;

(c) relatedly, the outcome of the proceeding is not determinative of private rights. The right to practise as a registered health practitioner, and the conditions on which that may be allowed to occur, involve the regulation of a public licence rather than the conferral of a private right; and

(d) the rules of evidence, and the practices and procedures that apply in courts, have no application (except to the extent that they are adopted by VCAT).[27]

43 Accordingly, I conclude that proceedings under Part 8 of the National Law are not curial proceedings.

Whether there is a statutory basis for the application of penalty privilege

44 The Board submitted that there is nothing in the language or structure of the statutory scheme that suggests an intention for penalty privilege to apply to Part 8 proceedings before VCAT. Further, there are a number of positive indications in the terms of the legislation that point the other way:

(a) there are specific provisions within the National Law that reinforce the protective nature of the regulatory regime;

(b) there are general provisions within the VCAT Act concerning the procedure to be adopted in VCAT. These provisions expressly relieve VCAT from the rules and procedures applicable in courts of record, including the rules of evidence;

(c) section 106 is a general provision that does not, in terms, refer to penalty privilege; and

(d) section 105 of the VCAT Act expressly abrogates the privilege against self-incrimination. As such, an irrational and absurd result would follow if s 106 were construed as incorporating penalty privilege.

45 Dr Gibbs submitted that proceedings before VCAT have curial features that provide a basis for the implication of penalty privilege as a matter of construction, and, if there were any doubt, s 106 of the VCAT Act makes it clear that penalty privilege is preserved.

46 The language of a statute may provide a basis for finding that penalty privilege does apply to a non-curial proceeding or setting.

47 In Frugtniet, the Full Court of the Federal Court of Australia stated:

... Following Daniels, if penalty privilege is to apply in a non-curial setting, it must be found to do so from the language of the provisions in question. Such a finding must be found in the face of the view of a majority of the High Court in Daniels doubting that penalty privilege ordinarily applies in a non-curial setting at all. ...

In particular, Daniels makes it reasonably clear that penalty privilege is not even a substantive rule of law of a kind that must be found not to apply or be abrogated in a non-curial setting, but, rather, a protection that must have a foundation for applying in the first place as a matter of statutory construction. ...

The task of implying that penalty privilege does apply in a non-curial setting may not face as high a hurdle, derived from the rule in Potter v Minahan, of concluding that privilege against self-incrimination does not apply. But there must be some basis to be found in the language of the statute for penalty privilege to apply to a non-curial proceeding or setting.[28]

48 Section 35(a) of the Interpretation of Legislation Act 1984 provides that, in the interpretation of a provision of an Act:

a construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not that purpose or object is expressly stated in the Act or subordinate instrument) shall be preferred to a construction that would not promote that purpose or object ... .

49 In Project Blue Sky Inc v Australian Broadcasting Authority, the plurality of the High Court stated that '[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute'.[29] The plurality went on to state:

... Ordinarily, [the legal] meaning ... will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.[30]

50 In this instance, s 106, when taken at face value,[31] appears to support a conclusion that penalty privilege applies to all proceedings in the original jurisdiction of VCAT. It is a privilege that is clearly applicable in proceedings in the Supreme Court, and it is not excluded from the terms of s 106.

51 The Board submitted that the interpretation of s 106 must be influenced by the existence of s 105 and that, in a number of decisions, reference has been made to the absurdity that would result if a person was able to claim penalty privilege but not the privilege against self-incrimination.[32] I am not persuaded by this submission.

52 In each of the decisions referred to by the Board, the Courts' conclusions that an absurdity would result were tied to the particular contexts and statutory regimes in question.

53 In the context of disciplinary proceedings being heard by VCAT, it makes sense to preserve penalty privilege so that the person subject to the disciplinary proceeding may claim it, whilst at the same time providing that the rule against self-incrimination does not apply.

54 Such an outcome ensures that all witnesses (other than in some instances the person the subject of a disciplinary proceeding) will be required to answer questions or produce documents so as to aid the obtaining of relevant evidence and further the protective nature of the regulatory regime.

55 When it comes to the person the subject of a disciplinary proceeding, although that person is not permitted to invoke the privilege against self-incrimination, a reliance on penalty privilege will in many instances have the same practical effect. But there is nothing inherently wrong or inherently absurd about this outcome in the context of a disciplinary hearing, such that the plain words of s 106 should be ignored or read down.

56 As to the Board's point that there are provisions in the VCAT Act that expressly relieve VCAT from the rules and procedures applicable in courts of record, including the rules of evidence, it is clear that s 106 provides an exception.

57 The only real issue is whether s 106 captures the privilege against exposure to penalties.

58 As stated above, the terms of s 106 are very broad. It purports to cover all privileges that can be invoked in proceedings in the Supreme Court. It does not provide for any exceptions other than as provided by ss 80(3) or 105. In other words, the privileges covered by s 106 do not extend to the review jurisdiction of VCAT, nor the privilege against self-incrimination. But otherwise, there are no limitations.

59 In Kemp, Niall JA (Maxwell P and Tate JA agreeing) relevantly stated:

... s 106 does have some relevance to the present question of construction. It has to be read in the context where, by operation of s 98 of the VCAT Act, the rules of evidence do not apply and VCAT can inform itself in any way it sees fit. Section 106 operates to preserve privileges that would apply in all proceedings in the Supreme Court, and s 98 has to be read in that light. For example, s 106 would operate to preserve in VCAT proceedings legal professional privilege, the privilege against self-incrimination, the privilege against exposure to penalties, public interest immunity, and 'without prejudice' privilege.[33]

60 Although this passage cannot be considered part of the ratio of Kemp, nothing has been advanced to suggest any inaccuracy in the statement of Niall JA to the effect that s 106 preserves the privilege against exposure to penalties, amongst other privileges. Similarly, nothing has been advanced to suggest that the conclusion of Niall JA in that regard would lead to an absurd result or an outcome not intended by the legislature.

61 In my opinion, the language of s 106 is clear. I conclude that there is a statutory basis for the application of the privilege against exposure to penalties in the VCAT proceedings the subject of this appeal.

62 My conclusion on this issue disposes of Ground 1.

63 The Board submitted that, even if penalty privilege did apply to the referral proceedings before VCAT, it did not require the vacation of the orders made by VCAT on 12 May 2025. The Board submitted that the present case was directly analogous to the situation in Frugtniet where similar orders were found not to impinge upon the operation of the privilege.

64 The Board submitted that, to the extent that the issue has been considered in other cases such as Towie, it has been considered in a manner so as not to give full effect to the 'lesser' nature or character of penalty privilege and its limited historical application.

65 Dr Gibbs submitted that, although the orders of 12 May 2025 did not direct him to put on a positive case, they did lead to the risk of him not being permitted to introduce evidence at the close of the Board's case should he choose not to serve any material by the required date.

66 There was no issue that, if penalty privilege applied, the Board was required to prove its case without any assistance from Dr Gibbs. There was also no issue that Dr Gibbs could choose not to run a positive case.

67 The area of dispute between the parties turned on whether Dr Gibbs had to effectively elect to run a positive case and provide relevant material in that regard prior to the commencement of the VCAT proceedings, and indeed prior to the Board having closed its case.

68 In Frugtniet, procedural orders had been made directing that Mr Frugtniet provide witness statements, documents and a statement of facts, issues and contentions in advance of the hearing. The Full Court held that even if penalty privilege did apply to the relevant AAT proceedings, its application would not have been triggered by the AAT's procedural orders. The Full Court emphasised that penalty privilege was a privilege that protects a person from being compelled to provide proof against themselves. But it was not a protection from the disclosure of evidence intended to be relied on as a matter of the efficient administration of a non-adversarial, non-curial tribunal. In that sense, the relevant orders under consideration 'did not in any way seek to compel [Mr Frugtniet] to give evidence or call any evidence'.[34]

69 It was noted by the Full Court that the orders were made in a context where the material relied upon by the Migration Agents Registration Authority had already been filed and served,[35] and that Mr Frugtniet

could have decided to withhold his statement until the hearing and then seek to rely upon it, taking the risk that this would not be permitted to take place ... However, it was not open to him to do that by a process of ambush, or by forcing an inefficient approach to the conduct of the AAT's hearing, contrary to its statutory mandate, by claiming penalty privilege.[36]

70 The orders made by VCAT in the current proceeding were based on the Court of Appeal's observations in Towie rather than the approach approved in Frugtniet.

71 Daniels and Rich provide little assistance in resolving the two approaches, as the High Court's obiter observations were directed to the availability of penalty privilege outside judicial proceedings as opposed to its scope.

72 Similarly, although the Court of Appeal in Towie proceeded on an assumption that penalty privilege was a substantive common law right, that does not mean that the Court's assessment of the scope of the privilege has no weight.

73 In Towie, the Court of Appeal's primary concern about the usual directions given at VCAT were that they required the provision of material, such as witness statements, and an election by the applicant as to whether they intended to go into evidence 'before the case advanced against [them] has been completed'.[37]

74 Finkelstein J in Mining Projects Group made similar observations, noting the following:

The circumstances in which penalty privilege may be claimed are not settled. In the past penalty privilege has been raised to prevent a plaintiff obtaining an order for discovery of documents or the administration of interrogatories. It is clear, however, that the privilege has a wider scope. It will operate, for example, to prevent an order being made for the provision of witness statements or for the production of documents on subpoena. In [Refrigerated Express Lines (A/asia) Pty Ltd v Australian Meat & Livestock Corporation (1979) 42 FLR 204] at 207-208 Deane J said that the privilege operates to prevent a plaintiff obtaining any information that will assist in establishing the defendant's liability to a penalty.

That the rule has a wider application than merely preventing a plaintiff from obtaining discovery or interrogatories reflects the broad object of penalty privilege. In Daniels ... [(2002) [2002] HCA 49; 213 CLR 543] at 559 Gleeson CJ, Gaudron, Gummow and Hayne JJ said that penalty privilege 'serves the purpose of ensuring that those who allege criminality or other illegal conduct should prove it'. That is, the plaintiff must prove his case without any assistance from the defendant. So it has been held that although in a civil action a defendant is required to deliver a defence he cannot be compelled to make any admissions in relation to the matters alleged against him. That is, penalty privilege operates to relieve a defendant from the need to deliver a defence that complies with the pleading rules if the rules would override the privilege. To the extent that pleading rules purport to impose such an obligation they must give way to the privilege.

There is a potential problem if, as in this case, a defendant wishes to run a positive case. Ordinarily a positive case must be raised in the defence. Whether it must be raised in a defence in a civil action to recover a penalty is by no means clear. The view I favour is that there can be no such requirement as it would be inconsistent with the privilege. On the other hand, if a defendant who wishes to run a positive case is required to plead his case that can be accommodated while maintaining the privilege. What should occur is that the defendant should be entitled to rely on the privilege until the plaintiff's case is concluded. If at that point the defendant decides to run a positive case he can deliver an amended defence that will outline his case. In an exceptional case the judge may grant a short adjournment to allow the plaintiff time to prepare if he is otherwise taken by surprise. In most cases that will not be necessary. By the time the plaintiff has closed his case the nature of the defence will usually be apparent. That is the experience of those who prosecute criminal cases. The advocate who runs a civil penalty proceeding should be equally adept at dealing with the defendant and his witnesses without knowing in advance every word they are about to say.[38]

75 The observations of the Full Court in Frugtniet were made so as to promote the efficient conduct of a particular type of hearing before an administrative tribunal.

76 But, I am not persuaded that this approach is consistent with giving effect to the privilege against exposure to penalties in the context of a disciplinary hearing at VCAT.

77 I am also not persuaded that conclusions expressed about the scope of penalty privilege in previous cases are necessarily linked to an assumption that penalty privilege is a substantive common law right rather than a lesser species of privilege.

78 The fact that penalty privilege is not a substantive rule of law and is different to the privilege against self-incrimination in several fundamental respects was something that Finkelstein J was alive to. Notwithstanding his Honour's recognition of the differences between the two privileges, he reached a similar conclusion to the Court of Appeal in Towie as to the scope of penalty privilege.

79 I can well understand the desire of the Board for VCAT to make directions so as to promote efficiencies. I can well understand that directions could be made so as to give a respondent to a disciplinary proceeding an opportunity to provide material in advance of a hearing, should they choose to.

80 But, it is another thing to effectively require a respondent to a disciplinary proceeding to make an election as to whether they intend to go into evidence prior to the close of the case against them, noting that a respondent who chooses not to serve any material (or chooses to serve limited material) runs the risk of not being permitted to introduce material at the hearing over and above that which has been served.

(a) any directions in the context of proceedings conducted before VCAT under Part 8 of the National Law ought permit a deferral of the decision to call evidence by a respondent until after the case against them has closed; and

(b) VCAT did not err in law or misapply the privilege against exposure to penalties insofar as it vacated order 3 of the 12 May 2025 orders.

82 My conclusion on this issue disposes of Ground 2.

83 I am satisfied that leave to appeal should be granted. The appeal raises questions of law in respect of the application and scope of the privilege against exposure to penalties that are of general importance to VCAT proceedings under Part 8 of the National Law.

84 However, as I am not satisfied that either Ground 1 or Ground 2 has been made out, the appeal will be dismissed.

[1] As set out in the Schedule to the Health Practitioner Regulation National Law Act 2009 (Qld), and adopted in Victoria by s 4 of the Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic).

[2] Towie v Medical Practitioners' Board (Vic) [2008] VSCA 157; (2008) 29 VAR 252 (Mandie AJA, Redlich and Weinberg JJA) ('Towie').

[3] Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543, 559 [31] (Gleeson CJ, Gaudron, Gummow and Hayne JJ) ('Daniels').

[5] Cf Police Service Board v Morris & Martin [1985] HCA 9; (1985) 156 CLR 397 (Gibbs, Murphy, Wilson, Brennan and Dawson JJ).

[6] Cf Migration Agents Registration Authority v Frugtniet [2018] FCAFC 5; (2018) 259 FCR 219 (Siopis, Robertson and Bromwich JJ) ('Frugtniet').

[7] Cf Rolfe v Territory Coroner (2023) 378 FLR 235 (Grant CJ, Barr and Brownhill JJ) ('Rolfe').

[8] [2004] HCA 42; (2004) 220 CLR 129 (Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ) ('Rich').

[9] See Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, 150 [134], 159 [158], 164 [178] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ).

[10] Daniels, 554 [13] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

[11] Ibid, 559 [31] (Gleeson CJ, Gaudron, Gummow and Hayne JJ) (citations omitted).

[12] Pyneboard Pty Ltd v Trade Practices Commission; Dunlop Olympic Ltd v Trade Practices Commission [1983] HCA 9; (1983) 152 CLR 328, 341 ('Pyneboard').

[13] Ibid, 346. See also Daniels, 554 [15] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

[14] Rich, 142 [24] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ) (citations omitted).

[15] In dissent, but not in respect of the nature of penalty privilege.

[16] Rich, 179 [129] (citations omitted).

[17] Australian Securities and Investments Commission v Mining Projects Group Ltd [2007] FCA 1620; (2007) 164 FCR 32, 36 [7] ('Mining Projects Group').

[19] Australian Securities & Investments Commission v Plymin [2002] VSC 56; (2002) 4 VR 168, 169 [5] (Mandie J) ('Plymin').

[24] Which was decided in November 2002.

[26] [2018] VSCA 168; (2018) 56 VR 51 (Niall JA, Maxwell P agreeing at 53 [1], Tate JA agreeing at 53 [2]) ('Kemp').

[29] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381 [69] (McHugh, Gummow, Kirby and Hayne JJ) ('Project Blue Sky').

[30] Project Blue Sky Inc, 384 [78] (McHugh, Gummow, Kirby and Hayne JJ) (citations omitted).

[31] Noting that s 80(3) of the Victorian Civil and Administrative Tribunal Act 1998 only applies to review proceedings.

[32] Rolfe, 262 [75]; Pyneboard, 344-5 (Mason ACJ, Wilson and Dawson JJ); Daniels, 559 [30] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

[38] Mining Projects Group, 37-38 [11]-[13] (citations omitted).