MH6 v Mental Health Review Board & Anor [2009] VSCA 184

1 The applicant seeks leave to appeal from a decision of a judge of the trial division who dismissed his appeal on a question of law from a decision of a Deputy President in the Victorian Civil and Administrative Tribunal (VCAT). By consent of the parties it was agreed that the application for leave and the appeal should be heard together by a court constituted by a bench of two judges.[1]

2 The applicant seeks to set aside an involuntary treatment order made by the Mental Health Review Board (the Board) under the Mental Health Act 1986 (Vic) (the Act) that requires his ongoing detention and treatment at a facility known as Mary Guthrie House. The first respondent, the Board, consistent with its normal practice, abides the decision of the Court and has not appeared in these proceedings. The Second Respondent, the Royal Talbot Hospital 'Austin Health', is involved in the treatment of the applicant and appeared in order to assist the Court. It seeks to uphold the order made by the Board. For convenience, we will refer to Austin Health as 'the respondent'.

3 In 1982 the applicant fell off a horse and suffered a brain injury. As a result of this injury the applicant went through a lengthy period of rehabilitation and was affected by persistent defects including ongoing cognitive impairments and behavioural difficulties. This has resulted in an increasing need for treatment and rehabilitation. Between 1982 and 2002, this need was managed by an area mental health service under a community treatment order. In 2002, the applicant was convicted of indecent assault and imprisoned for a short period. In August of that year, he was admitted to Mary Guthrie House, which is described as a 'specialised, secure rehabilitation facility for adults aged 18 to 65 with co-morbid diagnosis of an acquired brain injury and psychiatric illness'.

4 The applicant has remained an involuntary patient at Mary Guthrie House for over six years. The applicant brought an application before the Board under s 29(1)(2)(i) of the Act, seeking reconsideration of his involuntary treatment order on the grounds that its continuation could not be justified.

5 The Act does not limit the frequency with which such applications may be made to the Board; under s 29(1)(a)(i) of the Act, an involuntary patient may at any time appeal to the Board against his or her involuntary treatment order. The applicant's right to seek further reconsideration of his involuntary treatment order under s 29 has at all times remained unaffected, notwithstanding the dismissal of his appeal by the trial judge or his appeal to this Court.

6 Pursuant to s 36(2), the Board is required to make an order for involuntary treatment if, after a hearing, it is satisfied that the conditions set out in s 8(1) of the Act are established.[2] The s 8(1) criteria comprise:

(b) the person's mental illness requires immediate treatment and that treatment can be obtained by the person being subject to an involuntary treatment order; and

(c) because of the person's mental illness, involuntary treatment of the person is necessary for his or her health or safety (whether to prevent a deterioration in the person's physical or mental condition or otherwise) or for the protection of members of the public; and

(d) the person has refused or is unable to consent to the necessary treatment for the mental illness; and

(e) the person cannot receive adequate treatment for the mental illness in a manner less restrictive of his or her freedom of decision and action.

7 On 20 August 2007 the Board determined to continue the involuntary treatment order made against the applicant.

8 The applicant applied to VCAT for a review of the Board's decision. This review jurisdiction was invoked pursuant to s 120 (1) of the Act, which provides:

a person whose interests are affected by a determination of the Board may apply to the Tribunal for review of the determination.

9 The review procedure followed at VCAT was a central issue on this appeal. It is therefore necessary to set out the procedure in some detail. It was not in issue that the review at VCAT was by way of a full rehearing of the application, with the Tribunal discharging all of the functions of the Board.[3] The pre trial orders for the review of the Board's decision were in the form usually made at a pre trial directions hearing at VCAT. The substance of the pre trial orders was as follows:

(a) The parties were required to serve statements of evidence of each witness to be called at the hearing, such statements to be provided in sequential order by specified dates, commencing with the applicant, followed by the respondents and the applicant in reply.

(b) The parties were required, by the same date as the applicant's reply material was due, to file and serve all the material on which they intended to rely at the hearing.

(c) Without leave a party could not present a case different from that contained in the material lodged by that party, call a witness from whom a statement had not been provided, or adduce evidence in chief additional to that in a statement of evidence.

10 As a consequence of these orders, the procedure adopted by the Tribunal at the hearing involved witnesses giving evidence by adopting the content of their witness statements and, in some instances, giving additional evidence in chief. They were then cross-examined. Two witness statements were tendered in lieu of witnesses being called. At the conclusion of the evidence, the hearing was adjourned with directions for the filing of written submissions. Austin Health filed its submissions first, the applicant then filed submissions in reply and Austin Health replied. Following the receipt of the written submissions, the Deputy President found that all five criteria under s 8(1) of the Act were satisfied, affirmed the decision of the Board and dismissed the application.

11 It is necessary to consider some aspects of the procedure followed at the oral hearing in greater detail. The hearing took place on 18 and 19 March 2008. A short time before the hearing, counsel for the applicant was advised by the registry that Austin Health would call its witnesses first. At the commencement of the hearing, he was informed by the Deputy President who was presiding, that the Tribunal required that 'the applicant presents his case first and then the respondent presents their witnesses, that's the normal procedure'.

12 What happened next is set out in the transcript of the VCAT proceedings. The relevant extract, with some interpolation in the reasons for decision of the judge of the trial division who first reviewed the decision of VCAT, provides:

[APPLICANT'S COUNSEL]: ... but there's one other issue to be resolved before we start, and that is as to which party proceeds first. My friend is of the opinion that the applicant should go first and I was under the impression that the respondent would go first. I made the inquiry yesterday of the registry in that regard, just so that I could arrange for my witnesses, and I was told that the respondent goes first in these matters and then the applicant.

DEPUTY PRESIDENT: Absolutely not - I'm sorry. I wasn't ever contacted about the procedure. I'm not sure who in the registry might have given that advice. It would not be the normal procedure. This is what we call a merits review. Your client is the applicant.

[APPLICANT'S COUNSEL]: Yes.

DEPUTY PRESIDENT: The applicant presents his case first and then the respondent presents their witnesses, that's the normal procedure. I'm sorry you've been misled in some way. I'm not sure who gave you that advice.

[APPLICANT'S COUNSEL]: I mentioned the matter and this person - it was a female - went away, made some inquiries and came back and said exactly that, and that's why I've arranged my witnesses in that order.

DEPUTY PRESIDENT: Unfortunately, that is not the procedure. I have no idea who you would have spoken to who would have given you that advice. It's certainly not the advice you would have been given were they to have consulted me, or any other member in the general list.

[APPLICANT'S COUNSEL]: I did say to them, 'Are you sure about that' and of course they said 'yes'. So I've arranged for my four witnesses to attend tomorrow.

DEPUTY PRESIDENT: Who are your four witnesses?

[APPLICANT'S COUNSEL]: [The applicant].

DEPUTY PRESIDENT: That's the applicant.

[APPLICANT'S COUNSEL]: Yes, his two carers and a gentleman who is a barrister that knows him.

DEPUTY PRESIDENT: With the barrister, does anyone want to cross-examine the barrister? We can interpose him later, it's no problem.

[RESPONDENT'S COUNSEL]: The suggestion I have - I understand my friend's embarrassment and the reasons for it - is that if the applicant were to be called this morning and I understand there is some possibility that one of the carers could get here today, I would be content then to call some of the medical witnesses, interpose them, although - - -

DEPUTY PRESIDENT: Why don't we do that, so that will overcome any difficulties about when your witnesses are available.

[APPLICANT'S COUNSEL]: Thank you for that.

[26] I add (for the purpose of aiding understanding) that at this point counsel for Austin Health referred to some matters concerning the medical evidence, the principal witnesses as to which were Dr Anton and Dr Hopwood. Counsel for Austin Health having noted that Dr Anton referred in her witness statement to reports of an occupational therapist, Ms Starritt, and a forensic psychiatrist, Dr Patel, and understanding that the plaintiff's counsel objected to their giving evidence, counsel for the plaintiff responded, and the following discussion occurred, as appears at pp 4 to 6 of the transcript:

[APPLICANT'S COUNSEL]: That's actually not right. I don't object to either of those doctors giving evidence. I object to part of the content of their reports only. I'm happy for them to be called.

DEPUTY PRESIDENT: All right.

[RESPONDENT'S COUNSEL]: What I was going to suggest is as both of their reports deal with assessments that took place in 2007, it would be convenient, so far as the disposition of the matter overall is concerned, if we called them today, because nothing that has happened since the witness statements have been prepared, and in particular none of the outcome of the applicant himself giving evidence could affect any of their evidence. So my suggestion would be that I would arrange to interpose Dr Patel - - -

DEPUTY PRESIDENT: Are you happy then with that, that they get interposed before perhaps your client has finished giving his evidence and his witnesses are heard by the tribunal?

[APPLICANT'S COUNSEL]: I think perhaps [the applicant] should finish his evidence first, but I'm certainly happy for them to be called after that.

DEPUTY PRESIDENT: The difficulty I have got is I must leave at 4.00, so there might be a - - -

[RESPONDENT'S COUNSEL]: Perhaps if we can just see how we go.

DEPUTY PRESIDENT: See how we go.

[RESPONDENT'S COUNSEL]: If we could finish [the applicant] and I could call each of them this afternoon, subject to the time constraints.

DEPUTY PRESIDENT: And then maybe leave your three till tomorrow.

[APPLICANT'S COUNSEL]: In relation to them, Deputy President, they're just simply his two carers that take him out on day - - -

DEPUTY PRESIDENT: So they won't take long.

[APPLICANT'S COUNSEL]: I don't see it being very lengthy cross-examination, subject to what my friend will say to you, and the barrister certainly is a person that is giving almost character evidence, he is not giving expert evidence. He's known him for seven or eight years and he will give that evidence. I don't see those witnesses being of extensive compass.

DEPUTY PRESIDENT: All right. Well, why don't we at this point say - we'll say okay, we'll work on the assumption that we'll hear from them tomorrow.

[APPLICANT'S COUNSEL]: Yes.

DEPUTY PRESIDENT: And you needn't then worry about getting them here today.

[APPLICANT'S COUNSEL]: Thank you. That would assist me.

DEPUTY PRESIDENT: And we'll start with [the applicant], see how we go with that and then you can call these two, Ms Starritt and Dr Patel, is it?

[RESPONDENT'S COUNSEL]: Yes.

DEPUTY PRESIDENT: You could get them sort of ready to come and start today.

[RESPONDENT'S COUNSEL]: Yes, thank you.

[APPLICANT'S COUNSEL]: Thank you for that.

DEPUTY PRESIDENT: Is there any point - we can't really - just having a quick look at all the material, if I look at the various criteria under the Mental Health Act, is there anything that's agreed upon between the parties? Which section is it that has the criteria in it?

[RESPONDENT'S COUNSEL]: Section 8.

[APPLICANT'S COUNSEL]: Section 8, Deputy President.

13 It is apparent from this extract that Counsel for the applicant appeared to have been content with the proposal by the Deputy President as to the sequence in which the witness could be called. During the hearing, both the applicant and Austin Health called their evidence as the witnesses became available. There was no objection raised to this course of action by either party. As a result, the applicant gave evidence first, followed by Dr Patel and Ms Starritt (two witnesses called by Austin Health), and then two witnesses called by the applicant, being an employee of state trustees and a barrister. The evidence of a third witness, who was not available, was then tendered. Austin Health then called its remaining witnesses, Dr Anton and Dr Hopwood.

14 By originating motion the applicant sought an extension of time in which to apply for leave to appeal from the decision and order of the Tribunal, and if time be so extended, leave to appeal. The hearing was conducted in the practice court. By consent of the parties, it was agreed that each of the applications would be heard and determined together.

15 The proposed question of law which was identified on appeal, as required by s 148(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), was that the Tribunal had erred in requiring the applicant to give evidence first. This contention was rejected by the judge below who held that it was open to the Deputy President in the exercise of her discretion to adopt such a procedure, which carried with it the 'benefit to the plaintiff of enabling him to address his concerns at the outset'.[4]

16 As stated by the judge below, the question concerned the procedure adopted by the Tribunal when conducting the review. His Honour further found that, in any event, the applicant had failed to object to the relevant procedure. His Honour observed:

When the Deputy President disabused him of the understanding gained from a member of staff at VCAT he did not object to the 'ruling', claim that it was erroneous as a matter of proper procedure in the circumstances, or contend that it was unfair to the plaintiff in his conduct of the case. He accepted the ruling and the discussion concluded with him thanking the Deputy President for the arrangement for the order of witnesses.[5]

17 His Honour consequentially dismissed the proceeding and refused to extend the time in which to appeal on the basis that to do so would be futile.[6]

18 By his notice of appeal the applicant submits that the judge below erred in holding that:

(a) it was open to the Deputy President to require the plaintiff to give evidence first; and

(b) the plaintiff did not as a result suffer any denial of natural justice.

19 The primary question raised by the grounds of appeal is whether the procedure adopted by the Tribunal satisfied the requirements of procedural fairness.

20 Where the outcome of a hearing may 'destroy, defeat or prejudice a person's rights, interests or legitimate expectations', the rules of natural justice apply unless they are clearly excluded.[7] In such circumstances the rules of procedural fairness require a fair and adequate opportunity of answering any allegation or charge.[8] Justice will not otherwise be seen to be done.[9] This requirement, often described as the hearing rule,[10] will be informed by consideration of a range of factors. At a minimum, the hearing rule will provide, in the words of Mason J in Kioa v West,[11] that:

when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it.[12]

21 In the present case, it is submitted by the applicant that the procedure adopted by the Tribunal was in breach of this principle because it required the applicant to give evidence before he was given an opportunity to hear the case put against him. The consequence, it was said, was that the applicant was required to a put a positive case without knowing the matters that were to be put against him so that he was deprived of an opportunity to fully reply after that case had been made. The respondent maintained that, in the present circumstances, it was incorrect to speak of the hearing rule as requiring that one party be entitled to respond to the case "against" him. This is because the hearing before VCAT was in the context of legislation requiring proceedings of an inquisitorial rather than an adversarial nature. The respondent contended that the purpose of the hearing was non-punitive and that it was incorrect to speak of any party as being required to make or respond to a case. In our opinion, the arguments advanced by both parties were conceptually flawed.

22 The applicant sought to rely upon Towie v Medical Practitioners Board.[13] At the time of the VCAT and Supreme Court hearings, the decision in Towie had not yet been published. In Towie, this Court overturned a decision of VCAT that struck out an appeal from the Medical Practitioners Board of Victoria. The applicant had brought an application for review of a decision by that board, made under the Medical Practice Act. VCAT had given the usual pre trial directions in very similar terms to those the subject of the present case. The applicant had been ordered to file his witness statements and any other further documentation on a date prior to the hearing. Unlike the present case, he objected to doing so, contending, inter alia, that this direction constituted a breach of the hearing rule.

23 The applicant relied upon the following statement in Towie:

we should indicate that, in our view, the usual directions given at VCAT [which required an applicant to put on evidence first], 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 to 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.[14]

24 It was submitted by the applicant that involuntary detention is analogous to 'exposure to a penalty' or 'disciplinary proceedings', and that the principle in Towie should therefore equally apply to the present case. The applicant submitted that this was consistent with the general principle that in proceedings which might affect a right, the person whose right may be affected should not be required to put a positive case. The applicant relied upon R v The Associated Northern Collieries,[15] where it was said that:

If the answer of the defendant might be evidence tending to subject him to punishment by any judicial or competent authority, or to any penalty or forfeiture, or disability in the nature of a penalty, the defendant will not be compelled to make the discovery.[16]

25 The respondent submitted that the principle articulated in Towie could have no application in a proceeding brought pursuant to the Act. The principle described in Towie is inapplicable, it was said, as the applicant was never potentially exposed to the imposition of a penalty. Rather, involuntary treatment is the consequence of an order made for medical treatment. The respondent relied upon observations by the High Court in Chu Kheng Lim v Minister for Immigration Local Government and Ethnic Affairs,[17] that involuntary detention in cases of mental illness can legitimately be seen as non-punitive in character.[18] The respondent maintained that while an applicant might conceive of, and even consider, his involuntary treatment as punitive, an involuntary treatment order is made for clinical and not disciplinary reasons. In further support of this submission, the respondent referred the Court to the objects of the Act, contained in s 4(1), which include:

(a) to provide for the care, treatment and protection of mentally ill people who do not or cannot consent to that care, treatment or protection; and

(ab) to facilitate the provision of treatment and care to people with a mental disorder; and

(ac) to protect the rights of people with a mental disorder;

...

26 The submission of the respondent cannot be sustained. It focussed on the purpose of the order rather than its effect. It is well understood that orders which may be non-punitive in their purpose can have a grave impact upon the rights or interests of an individual.[19] The consequences of an involuntary treatment order include the continued, indefinite, and involuntary detention of the applicant. An involuntary treatment order affects interests in a manner that enlivens those aspects of the hearing rule articulated in Towie. Procedural fairness would require that an involuntary detainee be given an opportunity to hear and respond to evidence that provides the jurisdictional basis for continued confinement. In such cases the 'usual procedure for merits review' at VCAT that 'the applicant goes first' will not normally be appropriate. Nor will such procedure ordinarily be appropriate at a hearing conducted by the Board.

27 We turn to consider whether in the present case the applicant was afforded a fair opportunity to be heard in accordance with the hearing rule.

28 An adequate opportunity will not have been afforded unless the party knows what is alleged, knows what evidence is relied upon to substantiate the allegation, and has an opportunity to respond to the case against them and put forward their own case.[20] Even where the process has an inquisitorial component, a party against whom adverse findings may be made, having been apprised of the issues, must be given the opportunity to put evidence and argument in response, though there be no 'case' being advanced against the party.

29 The common law rules of natural justice and procedural fairness are 'neither standardized nor immutable'.[21] Their content may vary, requiring adjustment according to the circumstances of the particular case.[22] In Mobil Oil Australia Pty Ltd v The Commissioner of Taxation,[23] Kitto J spoke of the 'impossibility of laying down a universally valid test by which to ascertain what may constitute ... an opportunity [to be heard] in the infinite variety of circumstances that may exist'.[24] Stephen J, to like effect, said of the requirements of procedural fairness in Salemi v MacKellar (No 2):[25]

not only will their effect and application thus vary depending upon the character and function of the particular statutory tribunal or person in relation to whose deliberations they are invoked (Ridge v. Baldwinper per Lord Reid (11)), they may also vary from case to case although each be conducted before one and the same tribunal or person.[26]

30 What may constitute an opportunity to be heard may be informed by the conduct of the parties prior to or during a hearing.[27] An evaluation of the realities and not the legalities of the situation is required when dealing with the question of what fairness demands in the circumstances.[28]

31 The procedural consequences of the rules of procedural fairness depend upon the particular statutory framework within which they apply and upon the exigencies of the particular case.[29] The relevant statutory framework is the Act and the VCAT Act. When hearing an appeal under s 120(1) of the Act, VCAT is to undertake what was described by the deputy president as 'a merits review', but may be described more fully as an appeal by way of re-hearing. The role of VCAT is to 'stand in the shoes' of the original decision maker. In doing so, VCAT has a broad discretion to chose its own procedure, but that discretion is governed by the requirements of procedural fairness.[30]

32 The applicant focused upon the unfairness that was said to arise at the final hearing of the proceedings. Whether procedural unfairness can be said to arise from a particular determination or step in the decision-making process must be viewed in the context of the proceedings as a whole. As this Court said in Dura (Aust) Constructions Pty Ltd v VMIA & Anor:[31]

where a decision-making process involves different steps and stages before a final decision is made, the requirements of natural justice may be satisfied if the decision-making process, viewed in its entirety, entails procedural fairness.[32]

33 In our view, the procedure that was followed did not in any sense deny the applicant the opportunity to fully address the material that was submitted in support of the continuance of his involuntary treatment. The applicant was well aware of the case against him and had a full and fair opportunity to be heard in respect of that case. The prior proceeding before the Board was by way of a full hearing at which the material upon which each party relied was fully exposed and tested. The agreement or acquiescence by the applicant through his legal advisors to the pre trial orders required both parties to disclose the material upon which they relied and from which they could not depart during the hearing without leave of the Tribunal. These were relevant factors in determining whether the applicant received a fair and adequate opportunity to be heard.

34 The applicant did not call any medical evidence at the Tribunal hearing, with the consequence that no resultant disadvantage flowed from the order in which witnesses were called. It may have been to the applicant's advantage that he gave his evidence before the medical witnesses so that his counsel had the opportunity to put aspects of his testimony to the medical witnesses. That was the conclusion reached by the judge below.[33] No criticism was made of that conclusion on appeal. At the hearing, counsel for the applicant on more than one occasion made observations reflecting his satisfaction with the procedure that was being followed. Finally, we observe that though it is unnecessary to show that procedural unfairness has affected the outcome,[34] the applicant did not attempt to identify any potential disadvantage that arose as a consequence of the course followed.

35 In our view, in the circumstances of this case, the Tribunal made no error in following the procedure which it did. The decision to hear witnesses in the order settled upon occasioned no unfairness when viewed in the context of the entirety of the proceedings.

36 We now turn to the alternative argument of the respondent that the entitlement to have the respondent's witnesses give evidence first had been waived.

37 It is submitted by the respondent in the alternative, that the conduct of counsel for the applicant before the Tribunal constituted a waiver of the applicant's right to insist upon compliance with the requirements of procedural fairness in issue, as the applicant's legal representatives raised no objection to the applicant filing and serving his witness statement and his counsel raised no objection to the applicant first giving evidence. The judge below accepted this submission. He was right to do so. That the applicant, through his legal representatives, waived any right to require that his evidence should follow the evidence of the witnesses called by Austin Health.

38 According to its strict legal connotation, waiver is an intentional act done with knowledge, whereby a person abandons a right by acting in a manner inconsistent with that right.[35] It has been observed that there are few cases in which waiver has been the clear basis for excusing a breach of the hearing rule.[36] However, there are a number of cases which have proceeded on the assumption that breaches of the hearing rule can be waived.[37]

39 Silence can amount to a waiver of the requirements of procedural fairness, although whether it will do so may depend on the forensic circumstances.[38] So it has been said that 'By standing by ... a party has waived the right subsequently to object.'[39] This principle may also apply in certain circumstances where objections to the way a hearing has proceeded were not raised until after an adverse decision was given against that party.[40]

40 It is therefore necessary to consider whether the applicant's legal representative's willingness to comply with the pre trial procedure, ordered without objection by the Tribunal, and his counsel's acceptance of the sequence in which the evidence was to be given, constitute a waiver of any right to require a different course or preclude him from asserting there was a denial of procedural fairness.

41 It was submitted by the respondent that counsel for the applicant was chiefly concerned that he did not have all his witnesses available. Once that concern was allayed by the invitation to interpose those witnesses the next day, the words and conduct of counsel demonstrated that he was satisfied with this course. No objection was made to the course proposed and counsel gave no indication that he perceived any unfairness arising from that procedure. The respondent submitted that this amounted to a waiver of any right to require a different procedure.

42 The applicant contended that the conduct of his counsel did not constitute a waiver. It was said that he was faced with a 'ruling' by the Tribunal and was bound to accept the ruling and to not 'quarrel further'. That submission cannot be sustained. The Deputy President had given no ruling. If counsel considered there to be any procedural unfairness in the proposed course, his obligation as counsel was to oppose it. He did not. Once the problem of the availability of the applicant's witnesses was resolved, counsel appeared entirely content with the course proposed. The judge below correctly described the conduct of counsel in these terms:

he did not object to the "ruling", claim that it was erroneous as a matter of proper procedure in the circumstances, or contend that it was unfair to the plaintiff in the conduct of his case. He accepted the ruling and the discussion concluded with him thanking the Deputy President for the arrangement for the order of witnesses.[41]

43 In the alternative, the applicant submitted on the appeal, though this does not appear to have been raised on the appeal below, that even if the conduct of counsel might be capable of constituting a waiver, it could not have this effect unless counsel was aware of his legal entitlement to insist upon the correct procedure. Implicit in this submission is the proposition that an effective waiver of the hearing rule requires an understanding by a party of the right to a fair and adequate opportunity to present that party's case and answer the case made against that party.[42] We accept that, in the case of a represented litigant, waiver may depend upon the Court's satisfaction that the legal representative made a conscious decision not to rely upon a legal entitlement.

44 It is convenient to deal with an allied argument before expressing our conclusion on this issue. The applicant submitted that the failure to take exception to the adoption of the inappropriate procedure did not necessarily preclude an appeal in respect of the point not taken. The applicant referred to decisions of intermediate courts of appeal, where failure to take a point at trial was observed as being not fatal to success upon appeal.[43] The following passage from the judgment of Dixon J in Burston v Melbourne and Metropolitan Tramways Board[44] was relied upon:

the question whether the failure of counsel to raise a contention at the trial precludes an application for a new trial is not in my opinion to be determined as an abstract proposition of law. The court's jurisdiction to order a new trial depends upon the demands of justice. Often it would be unjust to set aside a verdict for a reason which but for the default of the party moving would never have existed. What is done and omitted at the trial is an important consideration to be weighed in determining a new trial application, but in the absence of a specific enactment or rule, it affects the exercise of discretion but does not amount always to a positive bar. There is not a rigid rule of law or practice.[45]

45 Reliance was also placed upon Re Knowles,[46] where the Court said;

The course to be taken in the conduct of the defence of an accused person is left to the judgment of the defence lawyers. A trial will not normally be regarded as having miscarried if the accused has been afforded a proper opportunity for choice and a choice has been made by his legal representatives on his behalf.

...

In this case counsel, believing the evidence to be inadmissible and without prospect of being admitted, would never have applied their minds to whether they should call Swaine's evidence and other evidence to a similar effect. Due to this fundamental error no choice was made by counsel as to whether or not it was in the interests of the petitioner to call this evidence. This resulted in the failure to tender the evidence. The error and omission were carried through to the appeal from the conviction. The affidavits indicate that counsel who argued the appeal on behalf of the petitioner was either guided by what senior counsel at trial told him, that the evidence was inadmissible, or was unaware that such evidence was available. In this case, the error of counsel as to the admissibility of the evidence amounted to a vitiating factor.[47]

46 The applicant's argument fails at the threshold for a number of reasons. It rests upon the assertion that as there was no forensic reason why counsel did not object, his failure to do so was the result of negligence or error. This ignores a perfectly sound forensic reason for the course that was followed. As we have already mentioned, the applicant's legal representatives had been content to have the applicant and his witnesses provide their statements before the hearing. They were in receipt of Austin Health's medical witnesses statements, which contained accounts of various incidents and the expressions of opinion of the applicant's medical condition. At the review hearing, the medical witnesses would confirm the content of those statements and be subject to cross-examination. The applicant was not intending to call any medical evidence and his oral evidence was in substance to be directed to the events and opinions contained in the statements of the medical witnesses. One can appreciate why the legal representatives of the applicant may have perceived no forensic disadvantage, and perhaps advantage, in the applicant putting forward his response to the foreshadowed medical evidence of Austin Health's witnesses at the earliest opportunity.

47 No evidence was placed before this Court that supports the bare assertion made on appeal from the Bar table that there was in fact any ignorance, error or negligence on the part of Counsel. This case is unlike, for example, Re Knowles, where affidavit evidence was provided explaining that there was error on the part of Counsel. There is no material which permits the conclusion that counsel made a mistake or was generally ignorant of his client's fundamental right to have a fair and adequate opportunity to meet the case against him.

48 Moreover, both the tribunal and this court are entitled to assume that a party's legal representatives are aware of their client's basic rights and will seek to enforce them when they see fit. McInerney J in R v Lilydale Magistrates' Court; Ex Parte Ciccone[48] considered that one must impute to a party's solicitor and counsel the extent of knowledge of their client's legal rights 'which a reasonably equipped solicitor and counsel would have'.[49] As Lord MacNaghten stated in Blackburn, Low & Co v Vigors:[50]

There is nothing unreasonable in imputing to a [litigant] all the information with regard to [proceedings] which the [barrister] to whom the management of [those proceedings] is committed possessed at the time and might in the ordinary course of things have communicated to [the litigant].[51]

49 Where a party is legally represented, a court or tribunal in ordinary circumstances is entitled to assume that the party's representative is fully aware of their client's rights. Here, the very likely explanation must be that counsel perceived no unfairness in the proposed course and for that reason took no objection. Any entitlement to have Austin Health's witnesses called first was consciously and effectively waived.

50 Finally, the applicant contended that it was 'irrelevant' whether counsel intended to waive the applicant's right to procedural fairness, as the adoption of the proper procedure was so fundamental to the proceedings that it would be impossible to waive insistence upon it. The applicant referred to the observations of Gleeson CJ in Nudd v R,[52] that a miscarriage of justice may occur where there 'is a failure of process which departs from the essential requirements of a fair trial'[53] and that where the conduct of counsel is said to give rise to a miscarriage of justice, 'ordinarily it is what was done or omitted that is of significance rather than why that occurred'.[54]

51 In Weerappah v Nisselle,[55] Smith J referred with apparent approval to a passage from the judgment of Samuels JA in Escobar v Spindaleri,[56] in which he rejected obiter observations of Simon P in Mayes v Mayes[57] that a rule of natural justice which goes to the very basis of judicature cannot be waived as it is a nullity. Samuels JA said:

With respect, I do not think that this proposition is sound. Counsel can always, I would have thought, waive, in the sense of not wishing to exercise, some procedural or other forensic rights. If he does so voluntarily, and with knowledge of the options open to him, it follows that he has not been deprived of any right or privilege and hence has not been denied justice.[58]

52 That view is consistent with academic writings. The authors of Judicial Review of Administrative Action state:

It has been occasionally been suggested that the hearing rule is too important to be capable of waiver. There may be something in that suggestion to the extent that it relates to circumstances in which a person has been given no opportunity to be heard whatsoever. It is at least arguable that in such a case acquiescence should not preclude a person from challenging such a breach unless it results in delay which justifies exercise of the discretion to refuse a remedy. Usually, however, waiver is argued where a person has received some form of hearing but claims that it was inadequate. In this context there appears to be little doubt that a person can waive the right to full observance of the hearing rule if that is done voluntarily, and with knowledge of the entitlements waiver.[59]

53 There is no reason in principle and no authority to doubt that full observance of the hearing rule may be waived. It follows that if, contrary to our conclusion and that of the judge below, the opportunity to be heard was inadequate, the course followed by the applicant's legal representatives constituted a waiver of any right to require the respondent's witnesses to first confirm the content of their witness statements and be cross-examined.

[1] With leave of the President under s 11(1A) of the Supreme Court Act 1986 (Vic).

[2] Mental Health Act 1986 (Vic) s 36(3).

[3] MH6 v Mental Health Review Board [2008] VSC 345, [6]-[7] (Hansen J).

[6] Ibid, [66]; Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516, 540.

[7] Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596, 598; Johns v Australian Securities Commission [1993] HCA 56; (1993) 178 CLR 408; Cornall v AB (a solicitor) [1995] VICSC 7; [1995] 1 VR 372.

1. [8] Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383, 395-6 (Dixon CJ and Webb J); Bohills v Friedman [2001] FCA 569 (Gray J). See, generally, Mark Aronson, Bruce Dyer and Matthew Groves, Judicial Review of Administrative Action (3rd ed, 2004), p 505; and Robin Creyke and John McMillan, Control of Government Action: Text, Cases & Commentary (2005), pp 573-6.

[9] R v Sussex Justices; ex parte McCarthy [1924] 1 KB 256, 259.

[10] Commissioner for ACT Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576.

[11] [1985] HCA 81; (1985) 159 CLR 550.

[13] [2008] VSCA 157.

[15] [1910] HCA 61; (1910) 11 CLR 738.

[17] (1992) 176 CLR 1.

[18] Ibid, 28 (Brennan, Deane, and Dawson JJ).

[19] See, for example, Al Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562.

[20] Towie v Medical Practitioners Board [2008] VSCA 157, [36].

[21] Public Service Board (NSW) v Osmond (1986) 159 CLR 656, 676 (Deane J).

1. [22] Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70, 91; Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 585 (Mason J); Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475, 503-504 (Kitto J); R v The Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546, 552-553.

[23] [1963] HCA 41; (1963) 113 CLR 475.

[24] Ibid, 503-504 (citations omitted).

[25] [1977] HCA 26; (1977) 137 CLR 396.

[27] See, for example, Banque Commerciale SA (in liq) v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 (Mason CJ and Gaudron J); Husain v O & S Holdings (Vic) Pty Ltd [2005] VSCA 269 (Nettle JA) where procedural fairness was not offended by a party proceeding beyond pleadings because of the acquiescence of the other party.

[28] White v Ryde Municipal Council [1977] 2 NSWLR 909, 925 (Reynolds JA).

1. [29] Minister for Immigration v Jia Legeng [2001] HCA 17, [181] (Hayne J); Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510, 576 [187] (Gummow and Hayne JJ) and Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S154/2002 [2003] HCA 60; (2003) 77 ALJR 1909, 1918-1919 [57] (Gummow and Heydon JJ).

[30] As indeed the procedure of the Board is required to abide s 24(1).

[31] [2009] VSCA 171.

[33] MH6 v Mental Health Board [2008] VSC 345, [67].

[34] Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181; (2007) 17 VR 492.

[35] Craine v The Colonial Mutual Fire Insurance Co Ltd [1920] HCA 64; (1920) 28 CLR 305, 326; Grundt v The Great Boulder Pty Gold Mines Ltd [1937] HCA 58; (1937) 59 CLR 641, 658.

[36] Percerep v Minister for Immigration and Multicultural Affairs [1998] FCA 1088; (1998) 86 FCR 483; Mark Aronson, Bruce Dyer and Matthew Groves, Judicial Review of Administrative Action (3rd ed, 2004), p 553.

[37] Moore v Guardianship and Administration Board [1990] VicRp 80; [1990] VR 902, 912 (Gobbo J); Le v Collins [2004] VSC 524 (Williams J); SBA Foods Pty Ltd v VWA [2001] VSC 276 (Gillard J).

[38] Vakuta v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 572 (Brennan, Deane and Gaudron JJ).

[39] Ibid; Smits v Roach (2006) 227 CLR 423, 439 [43].

[40] The Council of The Municipality of Burwood v Harvey Nos. Ca 40269/93; Lec 30684/91 Courts and Judges - Environmental Planning and Assessment - Waiver [1995] NSWSC 149 (13 November 1995), [16] (Mason P), [17] (Cole JA).

[41] MH6 v Mental Health Review Board [2008] VSC 345, [65].

[42] See, for example, Thompson v Ludwig (1991) 37 IR 437 (Gray J).

[43] R v Clune (No 2) [1996] VicRp 1; [1996] 1 VR 1; Burchett v Kane [1980] 2 NSWLR 266.

[44] [1948] HCA 36; (1948) 78 CLR 143.

[46] [1984] VicRp 67; [1984] VR 751.

[48] [1973] VicRp 10; [1973] VR 122.

[50] (1887) 12 AC 531

[52] [2006] HCA 9.

[55] [1999] VSC 249.

[57] [1971] 1 WLR 679.

[58] Escobar v Spindaleri (1986) 17 NSWLR 51, 62.

[59] Mark Aronson, Bruce Dyer and Matthew Groves, Judicial Review of Administrative Action (3rd ed, 2004), p 553.