Chiropractic Board of Australia v Hooper (Review and Regulation) [2013] VCAT 417

1. The respondent's application pursuant to s 108(4) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) is rejected.
2. The respondent must pay the applicant's costs of this application to be assessed in default of agreement on the County Court General Scale.

1. This is an application by Dr Hooper, the respondent to the proceeding, under s 108(4) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ("the VCAT Act"), for the Tribunal as it includes Davis SM, to be reconstituted.[1] The application for reconstitution is opposed by the applicant. The proceeding was commenced on 8 April 2010 by the Victorian predecessor of the applicant. There are eight allegations of professional misconduct and unprofessional conduct alleged against Dr Hooper. The final hearing of the matter commenced on 21 January 2013 and has continued for 34 days. I was informed that it has reached its 60th day of proceedings before the Tribunal since 2010. The lengthy history of the proceeding includes numerous interlocutory applications having been made to the Tribunal. An application to reconstitute the Tribunal was previously made by Dr Hooper to Judge Macnamara VP and refused by him on 18 February 2013 in Chiropractic Board of Australia v Hooper.[2] Most recently a further application made to the Tribunal hearing the matter was refused on 10 April 2013.
2. Past decisions of the Tribunal give guidance as to how requests made under s 108(4) should be considered. These decisions are frequently applied in applications of this nature. In Metrospan Developments Pty Ltd v Whitehorse City Council, Justice Kellam P accepted that the s 108 power could be exercised in a wide range of circumstances. He held that the s 108 power should be exercised rarely and there were important limitations:[3]

However, whatever might be the breadth or the limit of discretion under s108 it is clear also that the power to reconstitute the membership of any Tribunal hearing during the hearing must be in accordance with a proper exercise of discretion. The section clearly cannot be used to achieve a defacto review or a defacto appeal of what has happened heretofore in the hearing. Neither is s108 to be used to signify the disapproval of the President as to the manner of the conduct of the hearing by the member or members concerned. Indeed it cannot be used in any way to compromise the independence of the Tribunal in question

1. In State of Victoria v Bradto Pty Ltd (Palace Entertainment Complex), Justice Morris P accepted that the discretion in s 108(5) is sufficiently broad to encompass circumstances where it is desirable to prevent the future conduct of a proceeding being contrary to the principles of natural justice.[4]
2. In Seachange Management Pty Ltd v Bevnol Constructions & Developments Pty Ltd, Judge Ross AP (as His Honour then was) held that:[5]

The manner in which a proceeding has been conducted will no doubt inform the exercise of the reconstitution discretion, but under s 108(5) the President is not concerned with providing legal redress for past wrongs.

In my view if a party has a reasonable apprehension that they will not receive a fair hearing before the Tribunal as presently constituted then that will provide a proper basis for the exercise of the discretion to reconstitute the Tribunal.

1. I am assisted in this application by comprehensive written submissions that were provided by both parties and by oral submissions by Mr Little, who spoke for Dr Hooper, and by Dr Freckleton SC, who appeared for the applicant. The background facts and circumstances are fully set out in the respective submissions.
2. There were two primary submissions that were made on behalf of Dr Hooper as to why the Tribunal should be reconstituted. First, it was said that the Tribunal had permitted the applicant's experts, Associate Professor Bennett and Dr Millar, to make extensive oral elaborations of their evidence as contained in written expert reports, whereas the respondent's expert witnesses, so it was contended, were limited in their oral evidence.
3. In the written submission on behalf of Dr Hooper, reliance is placed on a number of transcript passages where it was said that the Tribunal had permitted further oral evidence to be led from the applicant's experts and on a number of transcript passages where it was said that the Tribunal had not permitted additional evidence to be led from Dr Hooper's experts, namely, Drs Stoller, Marois, Patritti and Ewer. It was submitted in development of this submission that:
   • (a) the situation was exacerbated by the fact that the Briginshaw standard of proof applied,[6] namely reasonable satisfaction that the case had been proved on the balance of probabilities, reference being made to the recent case of GLS v PLP,[7] and the need for strong, clear and cogent evidence if the allegation were to be proven; and
   • (b) the Tribunal's ruling showed that there was a reasonable apprehension of bias, namely, that the fair-minded lay observer might reasonably apprehend that the Tribunal, and Davis SM in particular, might not bring an impartial and unprejudiced mind to the resolution of the questions that stand to be decided. It was said that the ability to introduce relevant evidence was arguably the central focus at any proceeding and was directly connected to the likelihood of a successful judgment and, contended on behalf of Dr Hooper, that any attempt to block, prevent or limit relevant evidence from one party, yet to permit similar evidence from another party, was an important circumstance for objective consideration by a reasonable lay observer.
4. Finally, it was said that the situation was made worse by the fact that Dr Hooper was a self-represented litigant, albeit assisted to the extent possible by Mr Little, who was admitted to practice as a barrister and solicitor of the Supreme Court of Victoria in 1980, but who ceased practising as a solicitor some 30 years ago.
5. Dr Freckleton SC drew my attention to the advanced stage of the hearing with only a few more days of evidence and then final addresses after 34 days of hearing. He submitted that it was highly undesirable to reconstitute the Tribunal after such a long and expensive hearing. He submitted that the advanced stage of the hearing and the cost to the parties in additional legal, expert and hearing costs was a significant factor in the exercise of my discretion.
6. Dr Freckleton SC drew my attention to the interlocutory orders made by Tribunal members on 31 May 2010, 22 November 2010, 20 June 2011 and 5 September 2012. The effect of the orders was that Dr Hooper was directed to file and serve all expert evidence and witness statements on which he intended to rely well in advance of the final hearing. At least one of those orders also contained directions which precluded either party from seeking to present a case different from that contained in the material lodged by the party in the proceeding or seeking to adduce further evidence-in-chief beyond that contained in the statement of witness evidence lodged with the Tribunal.
7. Dr Freckleton SC also relied on the VCAT Practice Note, PNVCAT2 - Expert Evidence, which is similar to the practice notes used in the Supreme Court of Victoria and the Federal Court of Australia. Amongst other provisions, the practice note requires expert evidence to be embodied in a report or reports served in advance of the hearing. The objective served by this practice note include the avoidance of surprise or ambush and the attainment of fairness by giving other parties the opportunity of considering the expert evidence to be relied on by the other party before the hearing.
8. These proceedings concern allegations made against Dr Hooper by the applicant arising out of treatments undertaken by him in 2007 and 2008. Allegation 7 concerns what the applicant alleges was false and misleading conduct in promoting the benefits of his treatments for numerous listed conditions over the period from 27 August 2007 to 3 March 2010.
9. By an amended notice of allegations dated 27 February 2013, the number of conditions that were said to represent false and misleading advertising was reduced to 30 specific conditions, many fewer than the 71 conditions that had formerly been alleged.
10. On behalf of the applicant, Dr Freckleton SC submits that it was Dr Hooper's election in the first place not to obtain expert reports concerning the conditions alleged in Allegation 7 from his experts, Drs Stoller, Marois, Patritti and Ewer, despite the fact that the second report provided by Associate Professor Bennett dated 16 March 2010 set out in tabular form, albeit briefly, his opinion as to the 71 specific medical conditions, the subject of Allegation 7. They are or were said to be the conditions referred on Dr Hooper's website.
11. Dr Hooper's expert reports were provided after 1 July 2012, when expert witnesses were instructed. None of these reports dealt with the substance of Allegation 7, despite the fact that these are the representations made to the public by the respondent on his website.
12. Dr Freckelton SC submits that in these circumstances, it was entirely understandable that the Tribunal limited the additional expert evidence sought to be elicited from these experts at a late stage of the hearing.
13. During argument, I was advised that the applicant's experts, when they gave evidence, were not cross-examined about the substance of the additional evidence now sought to be obtained from Dr Hooper's four experts. As to the additional evidence permitted by the Tribunal to be led from Associate Professor Bennett, this was said by senior counsel for the applicant to have been modest, structured, focused and clear, whilst that elicited from Dr Millar was said to have been short and, by way of clarification, of matters in his reports. On behalf of Dr Hooper, Mr Little pointed out that Associate Professor Bennett's examination occupied 21 pages of transcript relating to 71 medical conditions, whilst that of Dr Millar amounted to some 11 pages. Mr Little also says that he was required to cross-examine Dr Millar immediately in relation to the new evidence.
14. The present situation seems to have arisen from cross-examination of Dr Millar by Dr Hooper, which traversed the matters in Allegation 7. This subsequently led to further questioning of Dr Millar by Dr Freckelton SC as to the matters in Allegation 7. On the other hand, Associate Professor Bennett's additional oral evidence appears largely to have been confined to the topics in his witness statement, albeit amplified in his evidence-in-chief. The cross-examinations on behalf of Dr Hooper of Associate Professor Bennett and Dr Millar were lengthy and substantial, extending over a considerable time.
15. Both Mr Little and Dr Freckelton SC drew my attention to authority concerning apprehended bias applications, including the decisions of the High Court of Australia in Michael Wilson & Partners Ltd v Nicholls,[8] Ebner v The Official Trustee in Bankruptcy,[9] and Johnson v Johnson.[10]
16. The applicable test is whether the fair-minded lay observer might reasonably apprehend or suspect that the judge has prejudged or might prejudge the case.[11] The test is objective and the standard to be observed is that of a hypothetical fair minded and informed lay observer. The lay observer is not assumed to have a detailed knowledge of the law or of the character or ability of the person about whom the allegation of apprehended bias is made.
17. In Johnson v Johnson, Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ held that:[12]

[T]he reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx.

1. In the present case, the problem that arose and has caused this application is clear. Dr Hooper wishes to lead further evidence from Drs Stoller, Marois, Patritti and Ewer and the Tribunal has refused to permit him to do so in respect of issues not canvassed in their expert reports. Dr Hooper contends that he should have been given that liberty. He says that because leave to adduce further evidence from the doctor has been refused, there is a reasonable apprehension of bias on the part of the Tribunal or at least Davis SM, and the Tribunal should be reconstituted.
2. I do not agree.
3. As was said by Justice Kellam P in Metrospan Developments Propriety Limited v Whitehorse City Council, the application to reconstitute is not a de facto review or a de facto appeal of what happened before in the hearing, nor can s 108 be used to signify the disapproval of the President as to the manner or conduct of the hearing by the Tribunal concerned.[13]
4. The application to reconstitute should not be used in any way to compromise the independence of the tribunal hearing the proceeding. It is part of the duty of the tribunal hearing a case, particularly a case as long and protracted as the present case, to make rulings as to the evidence. Sometimes, expert evidence sought to be led at short notice will need to be constrained. Whether a ruling is in favour of or adverse to a particular party is not indicative of apprehended bias. Rather, it is an inevitable consequence of a long hearing of a heavily contested matter involving numerous rulings of the Tribunal.
5. The fact that rulings have been made in this case concerning the four experts from whom Dr Hooper wishes to lead additional evidence does not mean that the Tribunal or Davis SM is, in any way, incapable of fairly or impartially making future rulings or a final decision in the case. Certainly, I am not satisfied that the circumstances of the present case are such that if I was to refuse to reconstitute the Tribunal, this would be likely to result in a breach of natural justice in the future. Natural justice fundamentally requires that each party have reasonable notice of what is alleged against that person, and then have a reasonable opportunity to be heard.
6. There is no contravention of the requirements of natural justice if a party does not make fully effective use of the opportunity to prepare or does not do as well as it hoped to do or might have done at the hearing.
7. In the present case, Dr Hooper was ordered by the Tribunal and had the opportunity well in advance of the final hearing to put in all of the expert evidence that he desired. He was, in any event, required by the VCAT Practice Note, PNVCAT2 - Expert Evidence, of 15 March 2012 and its predecessors to do so. He can be assumed to be conversant with the representations made to the public by him on his website. Even if Dr Hooper failed or overlooked the requirement to file comprehensive expert evidence, there was still the opportunity to do so by leave of the Tribunal.
8. It is obvious that the later in the final hearing that the request to file or lead additional expert evidence is left, the more problematic the position and the less likely that an application for leave to file or lead additional expert evidence can or should be granted by the Tribunal. In any hearing involving experts, it is essential for each expert to be cross-examined as to the opposing expert's opinions so that the Tribunal has the benefit of the opposing and tested opinions on which to make the decision. Indeed, to fail to put evidence to be led from later expert witnesses to the expert witnesses earlier called by an opposing party may itself give rise to a lack of procedural fairness and injustice to the party which presented its case in ignorance of the opposing evidence to be led later from other witnesses.
9. Clearly a court or tribunal cannot permit parties to be subject to a predicament such as this. Sometimes, when confronted by a situation where unfairness would or might develop, a court or tribunal might permit witnesses to be recalled after opposing witnesses have been called and cross-examined. Whether such course of action is open, feasible, convenient or fair can only be assessed by the tribunal hearing the matter. There may be reasons of fairness, cost or convenience that preclude or mitigate against such a course of action.
10. What is clear is that it is not for me on hearing a reconstitution application to second guess the rulings made by the tribunal hearing the substantive matter or to permit an application to reconstitute to be used as a de facto appeal of the rulings made during the lengthy hearing of this matter.
11. It is clear that in this case the Tribunal was requested to accede to the receipt of new and additional expert evidence in circumstances where the additional evidence was to be led orally and had not been reduced to writing or provided an advance to the applicant. The request was made late in time in a protracted hearing resulting in difficult issues of fairness and justice to both parties which the Tribunal had to decide. It was refused by the Tribunal for the reasons that it gave.
12. I am also satisfied that the need for the applicant to prove the allegations made to the Briginshaw standard does not affect the outcome.
13. Whatever the standard of proof, the proceeding stands to be conducted in accordance with the directions that have been made as to expert evidence and the expert witness practice note. If a party did not, in the opinion of the Tribunal undertaking the final hearing, comply with directions or the practice note, or leaves its request to call additional expert evidence to such a late stage in the hearing that it cannot be received without disadvantage or prejudice to the other party, the party has only itself to blame. The standard of proof required at the hearing has no bearing on the position that the Tribunal finds itself in or the need to afford justice and fairness to all parties.
14. Whilst consideration should be given to the fact that Dr Hooper is presently a self-represented party assisted by a former legal practitioner who ceased practice 30 years ago, the orders given by the Tribunal for the filing of expert evidence is simple and clear. Their gravamen would have been readily apparent to an experienced professional person such as Dr Hooper. In addition, there have been a number of directions as to the filing of material. The VCAT Practice Note on Expert Evidence is readily accessible on the Tribunal's website. Dr Hooper has previously been represented by legal advisers, senior and junior counsel.
15. I must inevitably conclude that the fact that Dr Hooper is presently assisted by Mr Little and is otherwise without legal assistance does not in itself justify the late request to rely on additional expert evidence or affect the outcome of this application to reconstitute the Tribunal.
16. Finally, an important factor is the advanced stage of the hearing. Both parties have a considerable stake and investment in the proceeding. It would be very undesirable to bring in a new member of the Tribunal at such a late stage of the hearing. The new member would be unfamiliar with the proceeding, would not have heard the witnesses or seen them cross-examined. The new member would be significantly disadvantaged in the determination of the proceedings. I should not permit such a situation to arise unless absolutely necessary in the interests of justice.
17. In the circumstances, I reject the application to reconstitute the Tribunal. I am satisfied that there is no bias or apprehended bias on the part of the Tribunal or Davis SM, the presiding member as a consequence of the rulings that have been made. The rulings made are not surprising having regard to the practice of the Tribunal and the practice of courts generally. I am satisfied that fair-minded persons would not reasonably apprehend or suspect that the Tribunal or Davis SM, the presiding member, have or might pre-judge the case and the decision that stands to be made on completion of the hearing.
18. Accordingly, I will order that the application to reconstitute the Tribunal under s 108(4) of the VCAT Act be rejected.
19. I will order that the respondent pay the applicant's costs of the application to reconstitute the Tribunal on the County Court General Scale. The application stems from the failure of the respondent to comply with orders and directions given by the Tribunal and with the Practice Note, PNVCAT2 - Expert Evidence.[14]

[1] Oral Reasons delivered on 15 April 2013.

[2] [2013] VCAT 236.

[3] [2000] VCAT 44 [13].

[4] [2005] VCAT 2512 [15].

[5] [2008] VCAT 1479 [32]-[33].

[6] Briginshaw v Briginshaw [1938] HCA 34; (1930) 60 CLR 336.

[7] [2013] VCAT 221 (Justice Garde P).

[8] [2011] HCA 48; (2011) 86 ALJR 14.

[9] [2000] HCA 63; (2000) 205 CLR 337.

[10] [2000] HCA 48; (2000) 201 CLR 488.

[11] Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, 344 [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

[13] [2000] VCAT 44 [13].

[14] VCAT Act, s 109(3)(a)(i) and (ii).