Under ss 64(3) and 108 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the Tribunal orders that:

1. The Tribunal be reconstituted.
2. The Tribunal as reconstituted be constituted by:
   • (a) Senior Member Jonathan Smithers;
   • (b) Member John Farhall; and
   • (c) Member Dianne Anderson.
3. The reconstituted Tribunal may have regard to any record of the proceeding in the Tribunal as previously constituted, including a record of any evidence taken in the proceeding.
4. The respondent is to file and serve any final submissions in the proceeding by 4pm on 15 November 2017.
5. The applicant is to file and serve any final submissions in reply in the proceeding by 4pm on 29 November 2017.
6. Costs reserved.

1. On 26 September 2017, I gave notice to the parties that I was seeking their submissions on whether the Tribunal should be reconstituted pursuant to s 108(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('Act'). The need to give notice arose because one of the members hearing the proceeding, Member Anderson, had ceased to be a member of the Tribunal shortly before the date of the hearing.

1. On 10 May 2017, the applicant, Jo-Anne Colwell, filed an application for review of the interim decision of the Psychology Board of Australia ('Board') to impose a number of conditions on her registration as a psychologist. The application was made under s 6A(1) of the Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic).
2. On 19 July 2017, the proceeding was listed for a two day hearing commencing on 21 September 2017 before a panel comprising of a legally qualified member and two members who are health practitioners with professional qualifications in the health profession regulated by the National Board that is a party to the proceedings,[1] that is, psychologists. The appointment of members to the panel was finalised on 24 August 2017.
3. The panel allocated to hear the proceeding consisted of Senior Member Smithers, as a legally qualified member of the Tribunal, and Member Farhall and Member Anderson, as psychologists. The hearing took place on 21-22 September 2017 at 55 King Street, Melbourne.
4. It was subsequently discovered that Member Anderson's appointment had expired on 9 September 2017, and that she had not yet been reappointed as a member of the Tribunal. In fact, she was reappointed as a member of the Tribunal on 31 October 2017 for a further term of 7 years.
5. On 13 October 2017, I heard submissions from the parties as to whether and how the Tribunal should be reconstituted. The parties made submissions as to three possible courses of action under s 108 of the Act:

(1) the Tribunal be reconstituted so as to consist of the same panel members as previously constituted, following the reappointment of Member Anderson by the Governor in Council, and then proceed to determination having regard to the evidence previously put before the Tribunal ('the first option');

(2) the Tribunal be reconstituted so as to consist of three new panel members and the matter be reheard ('the second option'); or

(3) the Tribunal be reconstituted in a manner that substitutes a new member of the Tribunal in place of Member Anderson, and then proceed to determination having regard to the evidence previously put before the Tribunal ('the third option').

1. Section 64(3) of the Act states that the constitution of the Tribunal is to be determined by the President for the purposes of each proceeding.
2. Section 108 of the Act provides:

(1) At any time before the conclusion of the hearing of a proceeding -

(a) a party may apply to the Tribunal for the reconstitution of the Tribunal for the purposes of the proceeding; or

(b) the President or a member of the Tribunal as presently constituted may give notice to the parties that the President or member seeks the reconstitution of the Tribunal for the purposes of the proceeding.

(2) If an application is made under subsection (1)(a) or notice is given under subsection (1)(b) -

(a) a presidential member, after allowing the parties to make submissions, may decide that the Tribunal should be reconstituted; and

(b) if so, the President must reconstitute the Tribunal.

(3) If the Tribunal is reconstituted for the purposes of a proceeding, the reconstituted Tribunal may have regard to any record of the proceeding in the Tribunal as previously constituted, including a record of any evidence taken in the proceeding.

1. Clause 11AJ of Schedule 1 to the Act makes provision for the constitution of the Tribunal for hearings under the Health Practitioner Regulation National Law (Victoria):

The Tribunal is to be constituted for the purposes of making a final determination under Part 8 of the Health Practitioner Regulation National Law (Victoria) by at least 3 members, of whom at least 2 must be health practitioners with professional qualifications in the health profession regulated by the National Board that is a party to the proceedings.

1. The Board submitted that the first option was to be preferred and would minimise any further delay in the determination of the proceeding. The hearing of the proceeding had involved the giving of evidence and cross-examination of Ms Colwell and two lay witnesses. It was undesirable to have to recall the two lay witnesses to give evidence again at a rehearing. If the third option were adopted, further time would be needed for the new panel member to become acquainted with the details of the case.
2. Ms Colwell expressed concern with what had occurred and the delay, noting the effect on her practice and income. She submitted that the second option was to be preferred, and that the proceeding should be reheard by a panel constituted by three new members. This would ensure that 'no bias' would remain from the conduct of the initial hearing.
3. Ms Colwell requested that the matter be listed for a compulsory conference in order to allow the parties to resolve their differences. She sought a transcript of the previous proceeding to allow her to reconsider her method of questioning for a rehearing.
4. In reply, the Board submitted that a rehearing would unnecessarily impose on the two lay witnesses involved in the proceeding. While Ms Colwell sought a rehearing in order to conduct the hearing better, it would be fairer and more efficient for the first option to be taken. There was no suggestion that any of the members involved in the hearing were affected in any way by bias or that a rehearing was necessary on this ground.
5. The Board opposed the conduct of a compulsory conference at this time. The current conditions imposed on Ms Colwell's licence were a form of immediate action. It would be better to proceed to determination of the current application concerning the immediate action. A full investigation could then take place. A compulsory conference might then be appropriate.

1. Given the expiration of Member Anderson's appointment as a member of the Tribunal on 9 September 2017, it is necessary for the Tribunal to be reconstituted under s 108 of the Act.
2. Section 108 confers a broad discretion to order a reconstitution of the Tribunal for any proper means or proper purpose.[2] The issue arises as to whether a reconstitution of the Tribunal can consist of the reappointment of the same persons who constituted the former Tribunal. In my opinion, it can.
3. 'Reconstitute' is defined in the Macquarie Dictionary as meaning 'to constitute again; reconstruct; recompense'.[3] The meaning 'constitute again' is the applicable meaning. The power in s 108 of the Act extends to the reconstitution of the Tribunal comprising the same members as it was previously constituted. The important difference is that all members are now validly appointed by an Order in Council.
4. I accept the submission of the Board that the first option is the fairest and most efficient way to proceed for the following reasons:

(1) The lay witnesses and Ms Colwell should not, if at all possible, be subjected to recall and the need to give evidence afresh.

(2) Ms Colwell's desire to revisit the hearing, and do better, whilst laudable, is not a sufficient reason to order a rehearing.

(3) The proceeding is a review of an immediate action by the Board and should be conducted as quickly and efficiently as the interests of justice permit.

(4) All members of the reconstituted Tribunal have heard the evidence, and seen the witnesses cross-examined. They are well placed to proceed to a decision.

(5) All members of the reconstituted Tribunal have heard the submissions made to date. The parties also desire to provide final submissions in writing.

(6) Option 1 involves the least delay and the least cost for the parties.

1. As submitted by Ms Colwell, a compulsory conference may assist in resolving the differences between the parties. However, it is best for the Tribunal to resolve the review of the immediate action taken by the Board, and then to conduct a compulsory conference in the event of any further proceeding. The orders that I will make will permit the review of the immediate action to be resolved as promptly as possible.
2. Section 108(3) of the Act provides for the reconstituted Tribunal to inform itself by having regard to the record of the proceeding before the former Tribunal as previously constituted. This obviates any need for the reconstituted Tribunal to rehear the proceeding and facilitates its expeditious determination.

1. I will make orders and give directions in accordance with these reasons.

[2] Metrospan Development Pty Ltd v Whitehorse CC [2000] VCAT 44; Gabrielidis v Hobsons Bay CC [2004] VCAT 614 [11]; Chiropractic Board of Australia v Hooper [2013] VCAT 417 [2]-[4].

[3] Susan Butler (ed), Macquarie Dictionary (Macquarie Dictionary Publishers, 6th ed, 2013) 1228.