Applicant v Respondents

2 The decisions made by the Mental Health Tribunal were:

(a) to deny the applicant access to certain documents relevant to the Mental Health Tribunal hearing; and

(b) to make a community treatment order in respect of the applicant.

3 In support of the application for leave to appeal, the applicant relied on:

(a) written submissions filed 15 December 2025 and 5 February 2026; and

(b) affidavits of Thomas Warne-Smith made 21 October 2025, 5 November 2025, 15 December 2025 and 5 February 2026, and the exhibits therein.

4 The first respondent relied on written submissions filed 2 February 2026. The first respondent made limited submissions in accordance with principles expressed by the High Court of Australia in The Queen v The Australian Broadcasting Tribunal; Ex parte Hardiman.[1]

(a) written submissions filed 23 January 2026 and 19 February 2026;

(b) affidavits of Emma Louise Turner affirmed 8 December 2025 and 3 February 2026, and the exhibits therein; and

(c) affidavits of Bethany Whitehouse affirmed 23 January 2026 and 3 February 2026, and the exhibits therein.

6 The proposed grounds of appeal, as set out in the amended notice of appeal, are as follows:

Ground 1

In affirming the decision of the First Respondent to make a community treatment order, VCAT erred by failing to afford the Applicant procedural fairness, or alternatively by failing to comply with ss 97, 98 and/or 102 of the Victorian Civil and Administrative Tribunal Act 1998 and/or s 24 of the Charter of Human Rights and Responsibilities Act 2006, by:

1. not providing the Applicant a reasonable opportunity to present evidence and make submissions at the VCAT hearing; and/or

2. refusing to adjourn the matter for further hearing.

Ground 2

VCAT failed to give sufficient reasons for deciding to affirm the decision of the First Respondent to deny the disclosure of documents to the Applicant under s 373(3) of the Mental Health and Wellbeing Act 2022, contrary to s 117 of the Victorian Civil and Administrative Tribunal Act 1998.

Ground 3

VCAT erred in affirming the decision of the First Respondent to deny the disclosure of documents to the Applicant under s 373(3) of the Mental Health and Wellbeing Act 2022 by failing to consider, or failing to properly consider, relevant human rights in the Charter of Human Rights and Responsibilities Act 2006.

7 Leave has also been sought to rely on the following additional ground of appeal:

Ground 4

VCAT erred in affirming the decision of the First Respondent to deny the disclosure of documents to the Applicant under s 373(3) of the Mental Health and Wellbeing Act 2022 by misinterpreting or misapplying s 373(3) and/or due to legal unreasonableness.

8 The community treatment order made by the Mental Health Tribunal, the subject of this appeal, is no longer in force. It was due to expire on 29 December 2025, but was revoked on 19 December 2025 by reason of a further treatment order having been made by the Mental Health Tribunal on 19 December 2025. The further treatment order is due to expire on 19 March 2026. Even if leave to appeal were granted and an appeal upheld, it would not result in the existing treatment order being set aside.

9 The relief originally sought in this proceeding included an order remitting the matter to VCAT for hearing and determination in accordance with the law. The relief now sought is centred on the obtaining of declarations.[2] The applicant submits, amongst other things, that review of VCAT's decision may result in the Court determining matters of broader principle or providing guidance relevant to future decisions of the Mental Health Tribunal or VCAT.

10 An appeal from VCAT pursuant to s 148 of the VCAT Act requires the leave of the Court. In the circumstances of this proceeding, I determined that it was appropriate to hear the application for leave to appeal prior to hearing the appeal itself.

11 Leave to appeal may only be granted if the appeal has real prospects of success.[3] I did not require argument as to the prospects of success, other than in respect of the considerations relevant to the discretionary nature of granting declaratory relief.

12 The relevant discretionary principles were set out by the Court of Appeal in Myers v Medical Practitioners' Board of Victoria as follows:

The approach as to when a court will grant leave to appeal pursuant to s 148(1) of the VCAT Act is set out by the Court of Appeal in Secretary to Department of Premier and Cabinet v Hulls. In summary, Phillips JA states:

• whether leave is granted or not must always depend upon the justice of the particular case;
• if leave is to be granted, the applicant must at least identify a question of law (as distinct from a question of fact) which is important to the substantive appeal's succeeding or failing;
• the applicant need not establish an error below - that is for the appeal itself. Rather, the applicant will be required to show that there is a real or significant argument to be put that error exists;
• although not essential, the applicant may identify a question of law that is of general or public importance. This will weigh in favour of granting leave;
• once a question of law has been identified which bears directly upon the relief which will be sought in the appeal, and once it has been shown that there is sufficient doubt attending that question to justify the grant of leave to appeal, leave will ordinarily be granted if the order below is a final order or final in its effect; and
• where the order sought to be appealed is an interim order, there may be reasons bearing on the justice done to both parties for not granting leave to appeal, for example, where granting leave to appeal will result in an unnecessary interruption to the substantive proceedings.[4]

13 Especially in the context of this case, a consideration that may bear on whether leave to appeal should be granted is whether the proposed appeal would be futile or of limited practical impact.[5]

14 Similarly, even if leave were granted, the power of this Court to grant declaratory relief is discretionary.

Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have 'a real interest' and relief will not be granted if the question 'is purely hypothetical', if relief is 'claimed in relation to circumstances that [have] not occurred and might never happen' or if 'the Court's declaration will produce no foreseeable consequences for the parties'.[6]

15 Although the present case 'involves no mere hypothetical question',[7] a declaration will have no clearly 'foreseeable' or 'practical consequences'.[8] It would not lead to the existing treatment order being set aside, and is unlikely to have much, if any, bearing on whether another treatment order would be made in the future.

(a) there was a public interest in correcting the procedural matters that caused an injustice;

(b) there was a public interest in ensuring that those possessed of executive and administrative powers exercise them only in accordance with the laws which govern their exercise; and

(c) a grant of declaratory relief in the form sought would constitute a vindication of rights and lead to the Court disapproving or condemning the relevant contravention.

17 The applicant further submitted that these matters were particularly important in the context of a vulnerable person having imposed on them non-consensual medical treatment.

18 In cases such as Minogue v Lourey[9] ('Minogue') and Loielo v Giles ('Giles').[10] the vindication of substantive rights was found to be a persuasive factor favouring the granting of relief.

19 In Minogue, declaratory relief was given in respect of whether there had been, in the past, a breach of the Corrections Act 1986 in respect of Minogue's right to receive mail whilst in prison. It was held that the issue was 'of ongoing and general importance to all prisoners in Victoria' going forward.[11] As a result of the declaration, it would be clear that a prisoner did have a right to send and receive mail unimpeded,[12] particularly where the mail involved correspondence between a prisoner and a legal advisor.

20 In Giles, declaratory relief was given in respect of public health directions that imposed a curfew, notwithstanding that the curfew had been revoked. In circumstances where the granting of declaratory relief would directly have an impact on the future exercise of emergency powers, Ginnane J held that he would not readily regard a declaration as having no foreseeable consequences.[13]

21 The circumstances of this case are very different.

22 In respect of Ground 1, the law in relation to procedural fairness is well established and whether a party was given a reasonable opportunity to present evidence and make submissions will always depend on the relevant circumstances.

23 The same can be said in respect of Ground 2. There is well established law in respect of the extent to which the reasons of a decision maker must be provided, and the answer will always depend on the relevant circumstances.

24 Ground 3 relates to the issue of whether VCAT failed to consider, or properly consider, relevant human rights in the Charter of Human Rights and Responsibilities Act 2006 (the 'Charter') when affirming the decision of the Mental Health Tribunal to deny disclosure of documents under s 373(3) of the Mental Health and Wellbeing Act 2022 (the 'MHW Act').

(3) If the Mental Health Tribunal determines that the disclosure of the information referred to in subsection (2) may cause serious harm to the person who is the subject of the proceeding or to another person, the Tribunal may -

(a) deny the disclosure of the relevant document to the person who is the subject of the proceeding; and

(c) have regard to that information at the hearing.

26 Whether or not VCAT has failed to consider, or properly consider, Charter rights is not something that is decided in a vacuum. As noted by the Court of Appeal in HJ v IBAC:

For a decision-maker to give 'proper' consideration to a relevant human right in compliance with s 38(1) of the Charter, he or she must: (1) understand in general terms which of the rights of the person affected by the decision may be relevant and whether, and if so how, those rights will be interfered with by the decision; (2) seriously turn his or her mind to the possible impact of the decision on a person's human rights and the implications for the affected person; (3) identify the countervailing interests or obligations; and (4) balance competing private and public interests as part of the exercise of justification.[14]

27 Here, the applicant points to the reasons of VCAT to support the submission that no consideration was given to the Charter. In that sense, this ground has some overlap with Ground 2.

28 Perhaps more importantly, it is not the Court's function under s 148 to decide whether VCAT reached the 'correct or preferable decision', so again a declaration will have limited scope.[15]

29 The decision as to whether to release documents is an exercise of discretion related to the need to ensure a fair hearing and will necessarily depend on a number of factors. An important and significant consideration will be the content of the medical reports on each occasion that the issue of release is determined.

30 Proposed Ground 4 seeks to develop issues surrounding the interpretation and application of s 373(3) of the MHW Act. The applicant submitted that, if the second respondent formed a view that information contained in medical reports could be shared, then there was no basis for refusing to disclose the documents themselves.

31 The second respondent's position was that provision of the actual documents containing the information posed the risk that the applicant may become fixated about the content and, should his symptoms recur, he may harm his parents.

32 It may well be an interesting question and I accept that this proposed ground could have been added to the appeal with little prejudice to the respondents.

33 However, this proposed ground does not take the matter any further in the context of public interest or foreseeable consequences.

34 A decision of this Court in respect of proposed Ground 4 may well add to the jurisprudence in respect of certain provisions of the MHW Act and the Charter, which I accept has some public utility. But it will not resolve whether or not the applicant ought be provided with medical records in any future application to the Mental Health Tribunal so as to ensure he is afforded procedural fairness, the outcome of which is necessarily tied to the content of the medical reports in question and the medical condition of the applicant at a particular moment in time.

35 I appreciate that, in some instances, it has been found that there is utility in a public statement by the Court that an Act has been contravened, such as in Director of Consumer Affairs Victoria v Mecon Insurance Pty Ltd,[16] where there was utility in the Court declaring that an insurance company had engaged in price exploitation.

36 However, the points of law and grounds of appeal identified in the current matter, particularly as they primarily relate to the issue of procedural fairness, do not come close to that situation.

37 Nor do they come close to the scenario in Kracke v Mental Health Review Board,[17] which involved an analysis of important aspects of the application and operation of the Charter in the context of whether review periods for involuntary treatment orders had been complied with.

38 It is always a question of degree and context and I appreciate the difficulties faced by the applicant in having an appeal pursuant to s 148 of the VCAT Act determined by the Supreme Court prior to a treatment order expiring. But even assuming that there is a real or significant argument to be put that error exists, in all the circumstances, I am not satisfied that the justice of this particular case justifies the grant of leave.

[1] (1980) 144 CLR 13.

[2] An order is also sought that the order made by VCAT on 16 September 2025 be set aside, although the applicant accepted that such an order would have no practical impact beyond what could be achieved by declaratory relief.

[3] Victorian Civil and Administrative Tribunal Act 1998, s 148(2A).

[4] Myers v Medical Practitioners' Board of Victoria [2007] VSCA 163; (2007) 18 VR 48, 55 [28] (citations omitted).

[5] Chopra v Department of Education and Training [2019] VSC 488, [23].

[6] Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 582 (Mason CJ, Dawson, Toohey and Gaudron JJ) (citations omitted).

[9] [2016] VSC 812 (McDonald J).

[10] [2020] VSC 722; (2020) 63 VR 1 (Ginnane J).

[11] Minogue v Lourey [2016] VSC 812, [5] (McDonald J).

[12] Save for in certain circumstances.

[13] Loielo v Giles [2020] VSC 722; (2020) 63 VR 1, 71 [267] (Ginnane J).

[14] HJ v IBAC [2021] VSCA 200; (2021) 64 VR 270, 306 [155] (Beach, Kyrou and Kaye JJA), citing Castles v Secretary, Department of Justice [2010] VSC 310; (2010) 28 VR 141, 184 [184]-[185] (Emerton J); Bare v Independent Broad-based Anti-corruption Commission [2015] VSCA 197; (2015) 48 VR 129, 198-9 [217]-{221], 218-23 [277]-[289], 297-8 [535]-[536].

[15] Aldi Foods Pty Ltd v Brimbank City Council [2013] VSC 294, [32] (Emerton J); quoting Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 419 (Bowen CJ and Deane J).

[16] [2016] VSC 42 (Elliott J).

[17] [2009] VCAT 646; (2009) 29 VAR 1 (Bell J).