Health Practitioner Regulation National Law Act 2009 (Qld) sch ss 155, 156, 157, 158, 159, 193.

Health Practitioner Regulation National Law (Victoria) Act 2009, ss 1, 4.

Kozanoglu v Pharmacy Board of Australia [2012] VSCA 295; (2012) 36 VR 656, discussed.

Hobart v Medical Board of Australia [2023] VSCA 270, discussed and followed.

1. Valerie Peers is a general practitioner. She was first registered as a medical practitioner in 1967. Following the commencement of the Health Practitioner Regulation National Law ('the National Law'),[1] Dr Peers was registered as a health practitioner with the Medical Board of Australia ('the Board').
2. On 4 November 2021, the Board, acting pursuant to s 156 of the National Law, determined to take immediate action to suspend Dr Peers' registration, thereby precluding her from engaging in general practice. That suspension remains in force.
3. On 12 January 2024, Dr Peers commenced a proceeding in this Court by originating motion, seeking judicial review of the Board's decision.[2]
4. The application for judicial review was heard by Gorton J on 4 October 2024.
5. At the hearing, Dr Peers argued that s 156 of the National Law was invalid and that there was no power to suspend a health practitioner indefinitely, as she asserted the Board had done.
6. On 15 October 2024, Gorton J dismissed Dr Peers' application with costs.[3]
7. Dr Peers now seeks leave to appeal that decision, asserting, as she did before Gorton J, that the suspension power in s 156 is subject to safeguards that mean that it may only be used as a temporary measure. This, she argues, is consistent with a decision of this Court,[4] which she contends Gorton J erred in not applying. Dr Peers also seeks an extension of time within which to seek leave to appeal the decision of Gorton J, her application for leave to appeal having been filed approximately two weeks late. The Board did not oppose this application.
8. We will grant Dr Peers an extension of time within which to seek leave to appeal. However, for the reasons that follow, leave to appeal will be refused.

The Health Practitioner Regulation National Law (Victoria) Act 2009 and the Health Practitioner Regulation National Law Act 2009 (Qld)

1. It is convenient to commence the analysis of Dr Peers' complaints by setting out the relevant parts of the National Law.
2. The National Law provides for a scheme for the regulation of health practitioners. The National Law incorporating the scheme is contained in a schedule to the Health Practitioner Regulation National Law Act 2009 (Qld), which is adopted in this State by the Health Practitioner Regulation National Law (Victoria) Act 2009.[5]
3. The following description (which we do not understand to be in issue) is taken, in the main, from Gorton J's reasons.
4. The purpose of the Health Practitioner Regulation National Law (Victoria) Act 2009 is to 'provide for the adoption of a national law to establish a national registration and accreditation scheme for health practitioners'.[6]
5. One of the objectives of the scheme is to 'provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered'.[7]
6. The 'main guiding principle' of the scheme is that the 'protection of the public' and 'public confidence in the safety of services provided by registered health practitioners' are 'paramount'.[8]
7. The Board has a variety of functions including overseeing the 'receipt, assessment and investigation of notifications about persons' who are or were registered as health practitioners,[9] and referring 'matters about health practitioners who are or were registered ... to responsible tribunals'.[10] The Victorian Civil and Administrative Tribunal ('VCAT') is the responsible tribunal in this State.[11]
8. The Australian Health Practitioner Regulation Agency ('AHPRA') is the national agency that administers the National Law. AHPRA receives notifications about the conduct of registered health practitioners pursuant to ss 140-145 of the National Law.
9. After receiving a notification about the conduct of a registered health practitioner, AHPRA must 'as soon as practicable' refer the notification to the relevant Board.[12] The Board then has three options:

(a) decide to take no further action, pursuant to s 151 of the National Law; or

(b) take immediate action against the registered health practitioner, pursuant to s 156(1) of the National Law; and/or

(c) commence an investigation into the registered health practitioner, pursuant to s 160(1) of the National Law.

1. Central to this application is the operation of Div 7 of Pt 8 of the National Law, which is headed 'Immediate Action'. That phrase is defined in s 155 relevantly as follows:

In this Division -

immediate action, in relation to a registered health practitioner or student, means -

(a) the suspension, or imposition of a condition on, the health practitioner's or student's registration ...

(1) A National Board[13] may take immediate action in relation to a registered health practitioner ... if -

(a) the National Board reasonably believes that -

(i) because of the registered health practitioner's health, conduct, or performance, the practitioner poses a serious risk to persons; and

(ii) it is necessary to take immediate action to protect public health or safety ...

(2) However, the National Board may take immediate action that consists of suspending, or imposing a condition on, the health practitioner's ... registration only if the Board has complied with section 157.

1. Section 157 sets out a mandatory show cause process requiring the Board to give the practitioner notice if it is proposing to take immediate action that consists (relevantly) of suspending the practitioner and to invite the practitioner to make any submission to the Board about the proposed immediate action.
2. In the event the Board decides to take immediate action, s 158(1)(a) requires the Board to give written notice to the practitioner immediately after making such a decision. Having decided to take immediate action, by reason of s 158(1)(b) the Board must also '[i]mmediately ... take the further action under this Part[14] the Board considers appropriate including, for example, investigating the practitioner'.
3. Section 158(2) provides that the notice of the decision to take immediate action must state the immediate action the Board has decided to take, the reasons for that decision, the further action the Board proposes to take, that the practitioner may appeal against the decision if the action is to suspend or impose a condition on the practitioner's registration, and how an application for appeal may be made (in Victoria, to VCAT) and the period in which the application must be made.
4. It may be noted that the right of appeal to which reference is made in ss 158(2)(d) and (e) is provided for in s 199(1). Such an appeal is an appeal on the merits, meaning that VCAT may confirm the decision to take 'immediate action', amend it, or substitute a new decision, and, in substituting a decision, VCAT has the same powers as the Board.[15]
5. Section 159 is important as it sets out the temporal limitations on an immediate action decision. It is entitled 'Period of immediate action' and provides:

(1) The decision by the National Board to take immediate action in relation to the registered health practitioner ... takes effect on-

(a) the day the notice is given to the practitioner ...; or

(b) the later day stated in the notice.

(2) The decision continues to have effect until the earlier of the following occurs-

(a) the decision is set aside on appeal;

(b) for the suspension of ... the registered health practitioner's ... registration, the suspension is revoked ... by the National Board; ...

1. Investigations can occur pursuant to Div 8 of Pt 8 of the National Law. In respect of an investigation, the Board must 'ensure an investigator it directs to conduct an investigation conducts the investigation as quickly as practicable, having regard to the nature of the matter to be investigated'.[16] Members of AHPRA's staff or contractors engaged by AHPRA may be appointed as investigators.[17] The investigator must give a report to the Board 'as soon as practicable after completing an investigation'.[18]
2. On receipt of the investigator's report, the Board must decide to take no further action or take the action the Board considers necessary or appropriate under another Division, and/or refer the matter to another entity, including for example, a health complaints entity, for investigation or other action.[19]
3. Certain matters must be referred to a responsible tribunal - which as previously noted, is VCAT in this State - unless the Board decides not to refer the matter because there is no public interest in the matter being heard by a responsible tribunal.[20]
4. Section 193(1)(a) of the National Law provides as follows:

(1) Subject to s 193A [which deals with the public interest exception], a National Board must refer a matter about a registered health practitioner ... to a responsible tribunal if-

(a) ... the Board reasonably believes, based on a notification or for any other reason the practitioner has behaved in a way that constitutes professional misconduct ...

1. The term 'professional misconduct' is defined in s 5 of the National Law as follows:

professional misconduct, of a registered health practitioner, includes-

(a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

(b) more than one instance of unprofessional conduct that, considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

(c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.

1. Between 8 October 2021 and 26 October 2021, AHPRA received notifications concerning Dr Peers alleging that:

(a) Dr Peers was issuing exemption certificates for COVID‑19 vaccines to patients without clinical indication;

(b) large crowds were congregating outside Dr Peers' clinic in Altona North without social distancing or wearing face masks;

(c) unusually large crowds were congregating outside Dr Peers' clinic;

(d) Dr Peers was advising patients and members of the community to not get vaccinated against COVID‑19; and

(e) individuals had sighted social media posts stating that Dr Peers had been issuing exemption certificates for COVID‑19 vaccines to 'anyone' and there were photographs of large crowds outside of her clinic.

1. On 27 October 2021, AHPRA informed Dr Peers of the notifications and advised her that the Board had decided to conduct an investigation to consider whether, during the period 1 September 2021 to 20 October 2021, she had:

(a) provided medical exemption certificates for COVID‑19 vaccines without clinical indication;

(b) provided anti‑vaccination advice to patients and members of the community without clinical indication contrary to the health advice of the Victorian government; and

(c) appropriately billed for her services.

1. On 3 November 2021, under the show cause provisions of the scheme, AHPRA notified Dr Peers that the Board proposed to take immediate action under s 156 of the National Law to suspend Dr Peers' registration on the basis that she posed 'a serious risk to persons and it was necessary to take immediate action to protect public health or safety, and immediate action was otherwise in the public interest'. Dr Peers was invited to provide written or verbal submissions to the Board by 4 November 2021.
2. On 4 November 2021, Dr Peers, by her lawyers, made submissions to the Board in response to its proposed immediate action.
3. On that day, and following receipt of the Dr Peers' submissions, the Board decided to take immediate action and suspended Dr Peers' registration pursuant to s 156(1)(a) of the National Law ('the immediate action decision').
4. On 25 November 2021, Dr Peers filed further submissions with the Board, seeking that it reconsider the immediate action decision.
5. On 29 November 2021, AHPRA informed Dr Peers' lawyers that it had received two further notifications 'about the lines outside of [Dr Peers'] Clinic and the medical exemption certificates for COVID‑19 vaccines issued by [Dr Peers]' in October 2021 and that it had decided to investigate these notifications.
6. On 1 December 2021, AHPRA notified Dr Peers' lawyers that the Board proposed to refuse to revoke the suspension and invited Dr Peers to provide written and/or verbal submissions by 8 December 2021.
7. On 2 December 2021, Dr Peers applied to VCAT for a merits review of the immediate action decision.
8. On 8 December 2021, Dr Peers via her lawyers provided additional written submissions to the Board.
9. On 9 December 2021, after considering Dr Peers' submissions and the material before it, the Board determined to refuse to revoke the suspension imposed on Dr Peers' registration pursuant to the immediate action decision.
10. On 10 December 2021, AHPRA informed Dr Peers' lawyers that it had received 'one notification about a medical exemption certificate for COVID‑19 vaccines issued by [Dr Peers]' in November 2021 and that it had decided to investigate that notification.
11. On 4 February 2022, AHPRA informed Dr Peers that it had received 'two notifications about the medical exemption certificates for COVID‑19 vaccines issued by [Dr Peers] and the lines outside of [her] clinic' in November and December 2021 and that it had decided to investigate those notifications.
12. On 14 July 2022, VCAT granted Dr Peers leave to withdraw her application for review of the immediate action decision and made orders noting the withdrawal. The immediate action decision remained in force with Dr Peers' registration suspended.
13. On 26 October 2023, the Board again reviewed the immediate action decision and proposed to refuse to revoke the suspension of Dr Peers' registration.
14. On 6 November 2023 - over two years after the immediate action decision - AHPRA informed Dr Peers that the Board had undertaken a review of the immediate action decision and that it proposed to refuse to end the current period of immediate action. The letter set out the Board's reasons for its decision and also noted that it had received the further notifications set out at [36], [41] and [42] above. The letter invited Dr Peers to make submissions and concluded:

Since the imposition of the immediate action conditions, there has been no material change in the evidence and as such any lesser form of immediate action on Dr Peers' registration would not be sufficient to address the identified serious risks. We also consider that since the initial immediate action further concerns have been raised which in fact heightens the risk already identified.

By maintaining the immediate action conditions (registration suspension), the Board can be satisfied that adequate regulatory safeguards are in place to protect the public. The investigation is ongoing. Since the imposing of registration suspension further concerns have been raised. The Board will decide to refuse to revoke and/or amend the current restrictions in place as maintaining suspension of Dr Peers' registration remains proportional to the alleged conduct underpinning the multiple notifications received to date.

1. On 4 January 2024, after receipt of submissions from Dr Peers, the Board determined to refuse to revoke the suspension imposed on Dr Peers' registration.
2. On 12 January 2024, AHPRA sent a letter advising Dr Peers of the Board's decision.
3. Also on this date, Dr Peers commenced her proceeding in the Trial Division of this Court (the subject of the present application) by filing an originating motion for judicial review of the immediate action decision.
4. On 3 May 2024, AHPRA informed Dr Peers that it had received a further notification in September 2023 that she had been overprescribing medication and/or prescribing medication without clinical indication, and that it had decided in October 2023 to investigate this notification.
5. On 20 September 2024 - nearly three years after the immediate action decision, and approximately two weeks before the hearing of Dr Peers' judicial review proceeding - the Board advised Dr Peers by letter that it had decided on the previous day to refer her conduct to VCAT because it reasonably believed that she had behaved in a way that constituted professional misconduct.
6. As noted above, the judicial review proceeding the subject of the present application was heard by Gorton J on 4 October 2024 and dismissed with costs on 15 October 2024.
7. On 11 December 2024, Dr Peers filed the present application for leave to appeal and the application for an extension of time within which to seek leave to appeal.
8. On 20 December 2024, the Board filed with VCAT two referrals identifying multiple allegations of misconduct on the part of Dr Peers. The referrals were made under s 193(1)(a) of the National Law. VCAT has not yet heard and determined those referrals.

1. In her originating motion, Dr Peers sought the following relief:
   1. The Court to order the Medical Board of Australia to immediately remove the suspension made on the 4 November, 2021 and restore my status as a registered health practitioner under the Act.
   2. The Supreme Court to declare that s156 of the Health Practitioner Regulation National Law Act 2009 (Victoria) is invalid in its practical operation or substance when the Board exercised the power indefinitely, that is, for years and is contrary to the very nature of the power where only interim and temporary protection for the public is envisaged.
   3. Furthermore to declare that there does not exist the power to indefinitely suspend a health practitioner under the Health Practitioner Regulation National Law Act 2009 (Victoria).
2. The grounds contained in the originating motion were set out as follows:

It is ultra vires the Board to indefinitely suspend a practitioner

I seek this judicial review to prevent the Board from exercising a power, the indefinite suspension of a practitioner that does not exist under the Act where it is exercised with complete freedom from legal control regulated by nothing more than their own will and pleasure. Discretionary powers are not so conferred.

See Affidavit dated 8 February, 2024 for more grounds relied upon.[21]

1. In Dr Peers' affidavit, a number of asserted grounds were set out - most of which were factual assertions and not proper grounds upon which to seek judicial review. However, the affidavit included the following:

I seek this judicial review to prevent the Board from exercising a power, the indefinite suspension of a practitioner that does not exist under the Act where it is exercised with complete freedom from legal control regulated by nothing more than their own will and pleasure. Discretionary powers are not so conferred. It is ultra vires the Board to indefinitely suspend a practitioner and the remedies that I seek is a court declaration to that effect and the immediate removal of the suspension.

...

I am seeking a judicial review of the decision made on 4 November, 2021 as the Board has exceeded its jurisdictional powers by exercising the s156 power for two years and counting and believes they can give it an indefinite operation that does not exist under the Act and it is contrary to the nature of the power that only interim and temporary protection is envisaged with as little damage to the practitioner as is possible.

...

The Board has exercised the suspension power pursuant to s156 of the Act and the Board has further exceeded its jurisdictional powers by exercising a power, the indefinite suspension of a practitioner, that does not exist under the Act and furthermore is contrary to settled case law that the nature of the suspension power is interim and temporary and to be exercised with as little damage to the practitioner as possible.[22]

1. Dr Peers' submissions before the judge and this Court focused on two decisions of this Court, Kozanoglu v Pharmacy Board of Australia ('Kozanoglu')[23] and Hobart v Medical Board of Australia ('Hobart').[24] It is convenient to examine those decisions at this point.
2. Mr Kozanoglu was a registered pharmacist and his ability to practice was governed by the provisions of the National Law. Following a notification from Victoria Police pursuant to s 144 of the National Law alleging that commercial quantities of a drug known to be used in the manufacture of ecstasy and three firearms had been seized in a raid at a pharmacy operated by Mr Kozanoglu, a delegate of the Pharmacy Board of Australia ('the Pharmacy Board'), took immediate action under s 156 of the National Law and imposed conditions on Mr Kozanoglu's registration as a pharmacist including that he not work as a pharmacist. The Pharmacy Board did not refer the allegations made against him to either a panel or to VCAT.[25]
3. Mr Kozanoglu then applied to VCAT pursuant to s 199(1)(e) of the National Law for a merits review of the decision to take immediate action by imposing conditions on his registration. At the hearing before VCAT, the Vice President amended the Pharmacy Board's original decision and substituted a decision imposing significant restrictions on Mr Kozanoglu's registration but permitting him to practice as a pharmacist.[26] Mr Kozanoglu then appealed pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 to the Trial Division of this Court. The judge dismissed his appeal and his subsequent appeal to this Court was likewise dismissed.
4. The appeal to this Court (before Weinberg and Harper JJA and Hargrave AJA) turned on the nature of an appeal to VCAT under the National Law, which bore on whether VCAT could receive certain pieces of evidence that had not been before the Pharmacy Board.[27]
5. The Court held that an appeal to VCAT was a hybrid of an appeal in the strict sense and a rehearing de novo, in which it was permissible for both parties to present additional evidence that bore directly upon the immediate action decision.[28] The decision on this issue is not relevant to this application. However, in several parts of the Court's reasons, the Court expressed its concern as to the Pharmacy Board's delay in taking any of the steps permitted under the National Law following the immediate action decision.
6. The Court considered that Mr Kozanoglu had, in effect, been compelled to appeal the immediate action decision to VCAT because of the Pharmacy Board's inaction following that decision, which the Pharmacy Board contended was due to an ongoing police investigation. The following parts of the Court's reasons dealing with the nature of the appeal against an immediate action decision are relevant to Dr Peers' argument on this application:

Turning to a consideration of the relevant legislation in this case, it would be unlikely that the legislature, in enacting the National Law, contemplated that an appeal from a decision to take immediate action would involve a rehearing de novo, in the fullest sense of that term. The IAC [Immediate Action Committee] (as delegate of the board) is expected to act, as the name of the 'immediate action' regime suggests, immediately. That suggests a temporal limitation, and also a certain standard of speediness on the board's part. There must be a certain point in time to which the decision to act is 'immediate'. It is the circumstances existing at that time that are relevant, and the belief spoken of in s 156 must be formed on the basis of those circumstances.

While the purpose of the immediate action provisions is the protection of the public - which would ordinarily strongly argue in favour of the relevant tribunal taking into account the most up to date material - only interim protection is envisaged. The practitioner's suitability to practise is then revisited, on all the material, before the panel or responsible tribunal.[29]

1. At the conclusion of its reasons, the Court made what it described as 'some final observations':

The IAC will generally be required to make quick decisions on the basis of limited information. When full information is later obtained, a belief which, on the limited information was reasonably based, may be shown to have been in error. Accordingly, the IAC and the board must always be conscious of the possibility of error. The consequences of that error may be serious. Two safeguards against such consequences should therefore be kept to the forefront. The first is the importance of a timely referral to a panel, or to VCAT. The second is that, while the safety of the public must necessarily be the prime concern, that safety should be secured with as little damage to the practitioner as is consistent with its maintenance.

It is arguable that neither of the two precepts mentioned above were fully observed in this case. Indeed, the real problem here lies in the fact that the board did not, immediately after the IAC finding, refer the appellant's matter to a panel, or to VCAT as the responsible tribunal. Instead, it elected to await the completion of a police investigation. That investigation could well have been extremely protracted. In our opinion, there was no justification for the board to have delayed referring this matter. Its failure to act in a timely fashion was unfairly prejudicial to the appellant and meant that he had little choice but to appeal against the immediate action decision. That in turn meant that he had to argue his case in a somewhat constrained manner, and did not confront the real issues of substance. It should be clearly understood that the entire scheme, under the National Law, contemplates that once it has been determined to take immediate action, the matter should ordinarily proceed, forthwith, to a panel or tribunal. The entire legislative scheme breaks down if there is a lengthy delay between an IAC decision and a complete hearing on the merits.[30]

1. Hobart involved allegations with some similarities to Dr Peers' case. AHPRA had received eight notifications concerning Dr Hobart relating to vaccination exemptions and the dissemination of information about COVID‑19.[31]
2. The Board determined to take immediate action by suspending Dr Hobart's registration pursuant to s 156 of the National Law.[32]
3. Dr Hobart did not appeal the decision to VCAT under s 199(1)(h) of the National Law; rather, he instituted a proceeding seeking judicial review in this Court of the Board's decision. That proceeding was dismissed by a judge in the Trial Division.[33]
4. By the time Dr Hobart's application for leave to appeal came before this Court, the Board had determined to refer the allegations against him to VCAT.[34] As with Dr Peers' case, a very significant period of time elapsed between the immediate action decision in respect of Dr Hobart (which was made in November 2021) and the decision to refer him to VCAT (which was made in May 2023).[35]
5. When the application reached this Court, Dr Hobart's complaints boiled down to an argument that the Board should have referred the matter immediately to VCAT.[36] Dr Hobart relied substantially on what had been said by the Court in Kozanoglu in the paragraphs extracted above.[37]
6. The Court (Niall and Whelan JJA) noted the contention was that 'whenever the power in s 156 was exercised by way of suspension, there necessarily followed an obligation to refer the matter to VCAT, this being an inherent constraint on the power to suspend under s 156'.[38]
7. The Court rejected this submission, holding as follows:

Dr Hobart's contention that there exists what amounts to an implied constraint upon the exercise of immediate action under s 156 by way of suspension, being a requirement for immediate referral to VCAT, cannot be accepted.

First and foremost, the National Law does not provide for any such constraint.

Further, the provisions of the National Law are inconsistent with the existence of any such constraint.

By s 158, the National Law requires the Board to take further action under pt 8 immediately after deciding to take immediate action. Amongst the actions which may be taken under pt 8 is investigation under div 8. Indeed, s 158 itself expressly gives as an example of the required further action 'investigating the practitioner'.

Section 160 enables the Board to gather further information, which, by reason of s 162, must be done 'as quickly as practicable'.

After an investigation is completed, s 167 provides that a Board may take the action it considers necessary or appropriate under another division. Amongst those other divisions, is div 12, which contains s 193.

These provisions make it clear that the Board can take immediate action and then take further action by way of investigation. These provisions are inconsistent with Dr Hobart's contention that there is an implied constraint on the power to take immediate action by way of suspension under s 156 requiring immediate referral to VCAT.

Dr Hobart's submission that the Board's power to suspend would be unchecked unless it were to make a referral to VCAT must also be rejected.

Dr Hobart relied upon passages in Minister for Immigration and Citizenship v Li, where French CJ, and Hayne, Kiefel and Bell JJ, explained that decisions must be reasonable, and constrained by law.

We, of course, fully accept what was said in Minister for Immigration and Citizenship v Li, but that does not lead to a conclusion that a Board must, upon exercising its suspension power, make an immediate referral to VCAT, when the National Law does not impose that requirement and contains provisions inconsistent with it.[39]

1. The Court also considered what had been said by the Court in Kozanoglu and found that Dr Hobart's reliance upon the decision in that case was 'misplaced' for the reasons given by the judge in the first instance in Hobart, which were as follows:

It would be problematic for a National Board to take immediate action under s 156 and then do nothing more. As Murphy JA said in Bernadt,[40] 'the legislature did not envisage that course (of doing nothing) as routinely or typically being open after taking immediate action'. That is what occurred in Kozanoglu, and what prompted the observations made by the Court of Appeal[.] In this case, if the Board had suspended Dr Hobart's registration under s 156, without taking any other action in relation to the matters that prompted its decision, he might have had a basis for relief.[41]

1. The Court went on to conclude that the delay in Dr Hobart's case was explicable by reason of the investigations into the relevant notifications and, unlike the facts in Kozanoglu (in which the Pharmacy Board elected to wait until the completion of a potentially 'extremely protracted' police investigation), did not involve the Board in effect sitting on its hands and thus earning the reproach of the Court. Rather, the Court noted that the Board commenced an investigation into each of the eight notifications against Dr Hobart, notified him, and provided him with regular updates. The investigation having concluded, the matter was referred to VCAT.[42]

1. The judge rejected Dr Peers' argument that he had no jurisdiction to determine the matter because of an asserted irreconcilable conflict between the decisions in Kozanoglu[43] and Hobart.[44] The judge held that even if there was conflict between the decisions (which he did not accept) then that did not deprive him of jurisdiction.[45]
2. As to the argument that the Board was required to refer Dr Peers' conduct to VCAT immediately (or promptly) after making a decision to suspend her registration, the judge applied what was said by this Court in Hobart.[46] His Honour rejected the suggestion that there was conflict between the decisions in Kozanoglu and in Hobart as to the necessity of a relevant Board acting in a timely fashion in making a referral to VCAT under s 193 of the National Law. The judge concluded:

That is not what I consider the Court of Appeal in Kozanoglu to have been saying. The Court of Appeal was criticising the Pharmacy Board for not taking the next steps that were required under the relevant legislation because of the risk of unfair delays associated with its not doing so, but was not purporting to express a limit on the powers contained in the legislation.[47]

1. Next the judge rejected Dr Peers' argument that s 156 had an implied temporal limitation and held there was no justification for reading any other temporal limitation on the power to take immediate action under s 156.[48] His Honour noted the 'first and most obvious point' as being that there are no time limits expressly provided for in the National Law. Rather, s 159 expressly states that immediate action will continue to have effect until the decision is set aside on appeal, the suspension is revoked, or an undertaking is agreed upon. In this way, the legislature had turned its mind to the duration for which immediate action may last and had expressed that duration by reference to possible events rather than time limits. His Honour noted that for practical purposes, in situations like those facing Dr Peers:

the legislation anticipates that the immediate action may last at least for the duration of the investigation, together with the time taken then for the matter to be determined by VCAT.[49]

there is nothing inherently unlawful in the legislature setting up a regulatory regime that allows for a regulator:

(a) to suspend registrations 'indefinitely', in the sense that the suspension does not have a fixed end date at the time it commences; or

(b) to do so on the basis of beliefs reasonably formed by the regulator that the practitioner poses a 'serious risk' to persons and that it is necessary to do so to protect public health or safety, rather than only after a final determination to that effect following a full hearing of the allegations made.[50]

1. The judge observed it was apparent that the legislature has prioritised the objective of 'protecting the public' from risks above the interests of practitioners continuing to practice or the risk of unfairness to any particular practitioner in any particular case. Such weighting of priorities was a policy matter for the legislature.[51]
2. The judge then made a series of 'Further observations' under the headings 'Should the Board have referred Dr Peers immediately to VCAT?' and 'The risk of unfairness to practitioners'. As to the question of whether the Board should have referred Dr Peers immediately to VCAT, the judge observed that '[i]t may well be, however, that on the basis of the reasons given by the Board for which it suspended Dr Peers' registration, the Board was, in the circumstances of this case, required by s 193(1)(a) of the National Law to refer Dr Peers to VCAT'.[52] However, he went on to say that any failure to make such a referral would not make the suspension unlawful, but it could make the Board susceptible to an order in the nature of mandamus requiring it to make such a referral. As Dr Peers did not seek an order in the nature of mandamus in her originating motion, and because by the time the case had reached trial the Board had made such a referral, it was not necessary for him to consider whether the Board was obliged to make that referral or to have made it earlier.[53]
3. His Honour pointed out that the obligation on the Board imposed by s 193 is not expressed to be conditional on the Board having formed a final view or having completed an investigation. Rather the Board is required to make a referral if it forms a belief, on reasonable grounds, that a practitioner has behaved in a way that constitutes professional misconduct. His Honour noted that it may often be the case that if the Board forms such a state of mind sufficient to decide to suspend under s 156, it will also have formed the state of mind which requires it to refer to VCAT.[54] The judge observed (emphasising that they were only observations):

the Board's referral obligation is triggered by its forming a belief on reasonable grounds that a practitioner has behaved in a way that constitutes professional misconduct, not on its forming a view that the professional misconduct has been 'proved'. The legislative scheme requires that where the Board has formed that belief, the referral takes place, and that VCAT then decides whether the practitioner has in fact engaged in a way that constitutes professional misconduct. That is not to say, of course, that an investigation could not proceed at the same time. But in serious cases, the referral should not necessarily, and may often ought not, await the findings of an investigation.[55]

1. Finally, the judge noted that whilst it was legally possible for the regulatory regime to operate unfairly from the perspective of medical practitioners by suspending them for prolonged periods of time in cases where the Board has decided to impose a suspension and commence an investigation, but has not made a referral,[56] there were nevertheless 'some protections' within the National Law. His Honour referred to: the fact that a practitioner may not be suspended unless the Board has formed the required views (ie those required by s 156(1)); the show cause process; the ability of a practitioner to apply to VCAT to have the immediate action reviewed on the merits and, if that fails, to apply for leave to appeal to the Trial Division of this Court on a question of law. The judge noted however that as exemplified by Dr Peers' case (in which the investigation took almost three years), this was 'not a complete solution because the practitioner will not know at that stage how long the immediate action will last'.[57]
2. Again, the judge noted that unless Dr Peers had in some way contributed to or caused delays, the fact the investigation took almost three years was 'unfortunate to say the least'.[58]

1. Dr Peers has formulated three proposed grounds of appeal which are set out below. If successful she seeks the following orders:

1. A court declaration that the Medical Board of Australia immediately refer a health practitioner to a Panel or a responsible tribunal following the exercise of the suspension power under section 156 of the Health Practitioner Regulation National Law Act 2009 (Vic).[59]

2. A court declaration that the decision in Hobart is invalid and Kozanoglu be followed.

3. Writ of certiorari to quash the costs order of Gorton J.

Consideration of proposed ground 1 - the extent of the suspension power under s 156 of the National Law

Gorton J failed to comprehend that the safeguard spoken about in Kozanoglu is a temporal restraint against abuse of the suspension power and operates independently of any the Board action or inaction.

1. Dr Peers argued that the decision in Kozanoglu was to the effect that when the suspension power in s 156 is exercised, the Board should immediately refer the practitioner to VCAT pursuant to s 193 in the manner explained in Kozanoglu. She said that the immediate referral to VCAT was a 'temporal safeguard' that is consistent with the interim and temporary nature of the suspension power.
2. Dr Peers emphasised the draconian nature of an immediate action decision and the effect it could have on a medical practitioner. She said that for over four years she has been suspended from practice with no end in sight. She has suffered significant financial and reputational repercussions as well as the inability to practice in her chosen profession over that period.
3. Dr Peers contended that the decision in Kozanoglu was 'case law' that qualified the suspension power in s 156 and provided a safeguard for practitioners, not provided for by the legislation in this State. She compared the legislation in this State with that in New South Wales and the statutory obligation upon the Medical Board in that State. She asserted that, if the Board does not refer a practitioner's conduct to VCAT after exercising the suspension power, it is 'controlling a portion of VCAT's jurisdiction and is a law unto themselves'. Dr Peers asserted that 'the Board is regulated by nothing more than its own will and pleasure'; that 'there's no resolution of the suspension power absent immediate referral'; and 'the power is currently being abused'.
4. Dr Peers rejected the proposition that a health practitioner's right of appeal to VCAT against an immediate action decision pursuant to s 199(1) of the National Law provided any solace or safeguard to the practitioner. She argued that very few appeals to VCAT by health practitioners were successful, which demonstrated that this was not a proper merits review and was, in effect, a paper tiger.
5. Dr Peers contended that Hobart was wrongly decided and was directly in conflict with the decision in Kozanoglu. She submitted that the suspension power in s 156 only provided for interim protection of the public, with as little damage to the practitioner as possible. Further, there was nothing stopping the Board from continuing an investigation of a practitioner after referring the practitioner to VCAT.
6. The Board responded by relying on this Court's reasons in Hobart, which it submitted were correct. Hobart had decided that the National Law did not provide for any constraint on the suspension power and that its specific provisions were inconsistent with any implied constraint of that kind. The Board relied particularly upon the statement in Hobart that the provisions of the National Law are inconsistent with the contention that there is 'an implied constraint on the power to take immediate action by way of suspension under s 156 requiring immediate referral to VCAT'.[60] It contended that the correctness of this Court's decision on the proper construction of the National Law has not been doubted and that the reasoning was compelling.
7. The Board submitted that there was no conflict between the decisions in Hobart and in Kozanoglu. Any statements by the Court in the latter case as to timeliness were observations in the context of the facts in that case.
8. In our view, and for the following reasons, the arguments of the Board should be accepted.
9. First, as the Court noted in Hobart, the terms of s 156 contain no limitation on the duration of any immediate action, nor any requirement to refer a health practitioner's conduct to VCAT immediately upon the Board deciding to take immediate action to suspend a practitioner.
10. To the contrary, s 159(2) expressly provides that an immediate action decision continues to have effect until the immediate action decision is set aside on appeal or revoked by the Board. Further, s 158(1)(b) expressly contemplates that, having decided to take immediate action, the Board may then take 'further action' that includes 'investigating the practitioner'. The legislature could, if it wished, have placed a fixed time limit on the duration of the effect of an immediate action decision. Or it could have required the Board to reconsider such a decision at fixed intervals. It did neither.
11. Second, there is no basis for implying any requirement that the Board, having suspended a practitioner under s 156, must immediately proceed to refer the practitioner's conduct under s 193. As the judge noted, the power to take immediate action under s 156 forms part of a comprehensive scheme relating to the conduct of health practitioners in this State. The operation of this scheme needs to be viewed in the context of a primary purpose of the National Law - the protection of the public. The scheme contemplates that, if the Board decides to take immediate action, it will then also take 'further action', and s 158(2)(c) requires the health practitioner to be given notice of what that action will be. It may include an investigation under Div 8 of Pt 8. The immediate action decision serves to protect the public while that investigation occurs. That is inconsistent with any implied requirement to the effect that, if a decision is made to take immediate action under s 156(1)(a), then the Board must immediately refer the practitioner to VCAT under s 193(1)(a). Indeed, because the preconditions that enliven the power in s 156(1)(a) differ from those that enliven the duty upon the Board to refer a practitioner's conduct under s 193(1)(a), some factual circumstances that would enliven the power to take immediate action would not enliven the duty to refer a practitioner's conduct to VCAT. The fact that some factual circumstances may simultaneously enliven both the power to take immediate action in s 156(1)(a) and the duty to refer in s 193(1)(a) provides no warrant for concluding, as a matter of statutory construction, that an exercise of the power necessarily also enlivens the duty.
12. It can readily be accepted that, as observed by the Court in Kozanoglu,[61] immediate action is urgent action taken on the basis of what may be limited material, with the potential to produce significant deleterious effects on a health practitioner's livelihood. It can also be accepted that, for that reason, the scheme contains certain safeguards.
13. The first safeguard is the show cause process set out in s 157 of the National Law. Section 157 gives a practitioner the opportunity to make submissions to the Board before the Board takes any immediate action. Dr Peers availed herself of this course. As Dr Peers observed, this course may be of little comfort if the Board decides to proceed with immediate action. But the provision of an opportunity to be heard is nevertheless a safeguard against unfairness, even if in particular factual circumstances the practitioner's submissions are not accepted.
14. The second safeguard is the right to appeal an immediate action decision, including a decision to suspend a health practitioner or impose conditions on their registration. To the extent that Dr Peers submitted that a s 193 referral is the only way in which the scheme permits a challenge to the Board's immediate action decision, we reject that submission. On the contrary, a practitioner has a right to appeal an immediate action decision to VCAT under s 199(1)(h), and s 159(2)(a) provides that an immediate action decision ceases to have effect if set aside on appeal. It was this right of appeal that Dr Peers exercised in late 2021 but then abandoned in mid‑2022.
15. Dr Peers disputed both the legality and practicality of an appeal to VCAT. She asserted that the VCAT appeal process, when initiated by a practitioner, was inadequate and did not enable a proper merits review of an immediate action decision. However, this proposition is contrary to what was said in Kozanoglu as to the nature of an appeal to VCAT under s 199 in relation to an immediate action decision.[62] In such an appeal, the practitioner may adduce additional evidence as they see fit to counter arguments advanced by the Board in supporting the immediate action decision. As the Board expressly accepted, the task of VCAT on such an appeal is to make a decision having regard to the current material at the date of its decision.
16. The third safeguard is the availability of administrative law relief. Various provisions of the National Law impose obligations on the Board, or its agents, in relation to timeliness. Section 162 obliges the Board to ensure that an investigator conducts their investigation 'as quickly as practicable'. Section 166 requires an investigator to report to the Board 'as soon as practicable after completing an investigation'.[63] Those statutory duties are 'not things written in water'.[64] If the facts require it, they may be enforced.
17. The final safeguard is the requirement in s 193(1)(a) that, as soon as the Board forms a reasonable belief that a practitioner has behaved in a way that constitutes professional misconduct, it refer the matter to VCAT. That obligation applies whether or not the Board has completed all of its investigations. During oral argument the Board accepted, in our view correctly, that it is under an implied statutory duty to decide whether it reasonably believes that a practitioner has behaved in a way that constitutes professional misconduct under s 193(1)(a) within an objectively reasonable time.[65] It follows that, if the Board fails to decide whether to refer a practitioner's conduct to VCAT under s 193(1)(a) within an objectively reasonable time, mandamus would issue to require it make that decision.[66]
18. Whilst we accept this may lead to the odd situation of a practitioner endeavouring to compel the Board to make a referral to VCAT to determine a professional misconduct allegation, that avenue may be appropriate if a practitioner wishes to bring matters to a head, in an attempt to bring any immediate action to an end by virtue of s 159(2)(a). Of course, as s 159(2)(b) contemplates, it would also be open to the Board to revoke the immediate action, and to determine not to proceed with a referral to VCAT.
19. While it is possible for a health practitioner to bring proceedings to enforce the duties that we have identified above (including the express and implied duties to make decisions within an objectively reasonable time), the Board should endeavour to conduct itself consistently with them. It is plainly undesirable for health practitioners to be required to institute proceedings in this Court simply in order to obtain decisions within a reasonable time. That is particularly true in light of the serious ramifications that an immediate action decision may have for the livelihood of such practitioners.
20. The observation_s_ made in Kozanoglu and set out above at [63] are entirely consistent with our reasoning. Contrary to Dr Peers' submissions, in that case the Court was not endeavouring to contradict the clear terms of ss 156 and 159 and create a binding obligation on a Board in relation to an immediate referral to VCAT. Rather, the Court was pointing out the unfortunate consequences of the Pharmacy Board's inaction in that case. Whilst it is true that the Court noted that the scheme breaks down when there is a lengthy delay 'between an IAC decision and a complete hearing on the merits', this observation needs to be viewed in the light of the practitioner's ability to appeal an immediate action decision to VCAT pursuant to s 199(1) and the other safeguards that we have identified.
21. Finally, in oral submissions, Dr Peers contended that it was not within the Board's jurisdiction to make a finding of professional misconduct against her. As we understood it, Dr Peers submitted that only VCAT has the jurisdiction to make a finding on the merits as to whether there has been professional misconduct. Further, Dr Peers submitted that the allegations against her did not comprise conduct that was capable of being professional misconduct. She emphasised that the writing of vaccine exemptions was not an example of professional misconduct in the National Law and contended that the Board lacked evidentiary support for finding that she had written fraudulent exemptions.
22. Putting to one side the fact that these assertions do not fall within the terms of the originating motion, there is no evidence that the Board has made any finding of professional misconduct. Before it may take immediate action in relation to a registered health practitioner, the Board, by s 156(1)(a) of the National Law, is required to form a belief, on reasonable grounds, that the practitioner poses a serious risk to persons and that it is necessary to take immediate action to protect public health or safety. By s 157(1), the practitioner is given a show cause opportunity, and by reason of s 157(3) the Board must have regard to any submissions made by the registered health practitioner in deciding whether to take immediate action. As the phrase 'immediate action' suggests, those provisions are concerned with creating a mechanism by which the Board may act quickly to protect the public. The provisions do not require the Board to consider or draw any conclusions about the merits of allegations of professional misconduct. As such, the taking of immediate action does not demonstrate that the Board has made any findings about the merits of the allegations against Dr Peers. Nor does the Board's referral of allegations to VCAT under s 193(1)(a). A referral is based on a belief, based on reasonable grounds, that the referred conduct constitutes professional misconduct, not a finding. The Board has acted within jurisdiction.
23. Finally, the fact that the writing of vaccine exemptions is not provided as an example of professional misconduct in the National Law does not make such conduct incapable of constituting professional misconduct. The question of whether Dr Peers' conduct constitutes professional misconduct is a matter for VCAT to determine on the referral.
24. This ground fails.

Consideration of proposed ground 2 - jurisdictional error of the judge in proceeding to decide the case given the decisions in Hobart and Kozanoglu

Gorton J committed jurisdictional error by proceeding to decide the collateral attack on the ruling of Hobart v Medical Board of Australia (2023) VSCA where he had no authority to decide the validity of that decision.

1. In this Court, Dr Peers did not advance any argument that the primary judge lacked jurisdiction to decide the matter below simply because she asserted that there was a conflict between two decisions of this Court. Nor could she credibly have done so. Instead, Dr Peers focused on endeavouring to establish that the decisions in Kozanoglu and Hobart were in conflict, and that the reasoning in Kozanoglu should be preferred.
2. In terms of ratio decidendi there is no conflict between the two decisions. The import of the decision in Kozanoglu related to the nature of an appeal to VCAT and thus whether additional material could be placed before VCAT on such an appeal. The observations in Kozanoglu in relation to the lassitude of the Pharmacy Board in referring Mr Kozanoglu's matter to VCAT were, as just mentioned, observations - no doubt with the purpose of ensuring the Pharmacy Board would proceed in a more timely fashion in the future.
3. Kozanoglu did not establish any principle relevant to the temporal relationship between the suspension power and the referral power, nor could it, given the clear terms of the provisions of the National Law. This was appreciated by the Court in Hobart, which was fully cognisant of Kozanoglu and of the factual differences between the two cases.[67]
4. This ground fails.

Consideration of proposed ground 3 - the efficacy of the costs order made by the judge

Gorton J has formed the view that a losing party should automatically pay costs and therefore has turned it into a court rule contrary to High Court case law which he is bound by.

1. Dr Peers argued that the prospect of costs should not be used to deter a health practitioner from enforcing their rights or to prevent the proper administration of justice. She described the decision of the judge to require her to pay costs as sending a clear message to the public that if they challenged the Board's power they would be burdened with legal costs, thus rendering the National Law nugatory. Dr Peers said that the judge had erred by making it a general rule that costs should be awarded 'as a rule of the court' in circumstances where she was merely seeking to hold the Board accountable for the exercise of its powers. In Dr Peers' submission, each party should have been ordered to pay their own costs.
2. In Northern Territory v Sangare,[68] the High Court said of the principle that costs usually follow the event:

A guiding principle by reference to which the discretion is to be exercised - indeed, 'one of the most, if not the most, important' principle - is that the successful party is generally entitled to his or her costs by way of indemnity against the expense of litigation that should not, in justice, have been visited upon that party. The application of that principle may be modified or displaced where there is conduct on the part of the successful party in relation to the conduct of the litigation that would justify a different outcome. For example, a successful defendant may be refused its costs on the ground that its conduct induced the plaintiff to believe that he or she had a good cause of action. But in the present case, there was nothing of this kind in the conduct of the appellant in relation to the litigation that might have weighed against the exercise of the discretion in its favour. There was no suggestion of any conduct on the part of the appellant, whether by unreasonable delay or a want of the cooperation required of litigants to ensure the 'just resolution of the real issues in civil proceedings with minimum delay and expense', that might have been taken into account to justify refusing the appellant an order for its costs.[69]

1. This passage was cited and applied by Kaye JA in previous litigation engaged in by Dr Peers.[70] Dr Peers is familiar with this principle. There is nothing in her submissions which indicates that the judge was in error in not departing from the rule.
2. This ground fails.

1. Each of Dr Peers' proposed grounds is without merit. Leave to appeal will therefore be refused. However, like Gorton J (and the Court in Kozanoglu) we feel compelled to make some concluding comments. The conduct of Dr Peers that was referred to VCAT in September 2024 includes the conduct that was the subject of the notifications received by AHPRA almost three years earlier, in October 2021, which led the Board to suspend Dr Peers in November 2021. A delay of nearly three years before the Board decided to refer that conduct to VCAT is concerning. As Gorton J observed, the Board did not file evidence to explain this delay, no doubt because it did not arise as an issue on the grounds of Dr Peers' judicial review application.
2. Had we been called on to assess whether the Board has acted in an objectively reasonable timeframe, we would have had regard to any further evidence filed by the Board that was directed to explaining the delay that occurred. However, we would also have had regard to the form of immediate action the Board elected to take against Dr Peers in November 2021 and to the express and implied timeliness requirements in the National Law. In cases where the Board elects to take the more serious type of immediate action, by suspending a health practitioner's registration (rather than, for example, permitting the practitioner to continue to practise subject to conditions on registration), it is incumbent on the Board to proceed to investigate and then to make a decision as to whether to refer a matter to VCAT under s 193 with expedition. This is supported not only by the express timeliness requirements in ss 162 and 166, to which we have referred above, but by the guiding principles of the scheme. While the protection of the public and public confidence in the safety of health services are the paramount guiding principles, Dr Peers was correct to point out that the other guiding principles require the scheme to operate in a transparent, accountable, efficient, effective and fair way. It will ordinarily be difficult to reconcile these objectives with a referral of a health practitioner's conduct to VCAT some three years after that conduct has led to the practitioner's suspension.

[1] The National Law is contained in the schedule to the Health Practitioner Regulation National Law Act 2009 (Qld). Section 4 of the Health Practitioner Regulation National Law (Victoria) Act 2009 adopts the National Law in Victoria and provides that it may be referred to as the Health Practitioner Regulation National Law (Victoria). Nevertheless, it is commonly referred to as the National Law.

[2] On 2 December 2021, Dr Peers had commenced a proceeding at the Victorian Civil and Administrative Tribunal seeking to review the Board's decision. She withdrew this application on 14 July 2022.

[3] Peers v Medical Board of Australia [2024] VSC 630 (Gorton J) ('Reasons').

[4] Kozanoglu v Pharmacy Board of Australia (2012) 36 VR 656; [2012] VSCA 295.

[5] Health Practitioner Regulation National Law (Victoria) Act 2009, s 4.

[6] Health Practitioner Regulation National Law (Victoria) Act 2009, s 1.

[11] Health Practitioner Regulation National Law (Victoria) Act 2009, s 6.

[13] The relevant 'National Board' for the purposes of these reasons is the Board: National Law, ss 5 (definition of 'National Board'), 31; Health Practitioner Regulation National Law Regulation 2018 (Qld), reg 4.

[14] Being Pt 8 of the National Law, headed 'Health, performance and conduct'.

[23] (2012) 36 VR 656; [2012] VSCA 295 ('Kozanoglu').

[24] [2023] VSCA 270 ('Hobart').

[25] Kozanoglu [2012] VSCA 295; (2012) 36 VR 656, 661 [29] (Weinberg and Harper JJA, Hargrave AJA); [2012] VSCA 295.

[29] Ibid 674 [106]-[107] (citations omitted).

[30] Ibid 677-8 [126]-[127] (citations omitted).

[31] Hobart [2023] VSCA 270, [3] (Niall and Whelan JJA).

[36] Ibid [39]. A second ground of appeal was abandoned: [44].

[39] Ibid [51]-[60] (emphasis added) (citations omitted).

[40] Referring to Bernadt v Medical Board of Australia [2013] WASCA 259, [296] (Murphy JA).

[41] Hobart [2023] VSCA 270, [61], quoting Hobart v Medical Board of Australia [2022] VSC 698, [48] (Richards J) (citations omitted).

[42] Hobart [2023] VSCA 270, [62]-[63] (Niall and Whelan JJA).

[43] (2012) 36 VR 656; [2012] VSCA 295.

[44] [2023] VSCA 270.

[46] [2023] VSCA 270, [51] (Niall and Whelan JJA).

[49] Reasons, [26] (citations omitted).

[50] Reasons, [27] (citations omitted).

[55] Reasons, [34] (citations omitted).

[59] The provision is, understandably, misidentified. The relevant provision is s 156 of the National Law, which is adopted by s 4 of the Health Practitioner Regulation National Law (Victoria) Act 2009.

[60] Hobart [2023] VSCA 270, [57] (Niall and Whelan JJA), extracted at [70] above.

[63] See [25] above.

[64] Commonwealth v AJL20 (2021) 273 CLR 43, 73 [52] (Kiefel CJ, Gageler, Keane and Steward JJ); [2021] HCA 21 ('AJL20').

[65] There is authority in the High Court that where a statutory duty does not include an express time limit for the exercise of the power, it may be implied that the duty is to be performed within a reasonable time: see, eg, Shahi v Minister for Immigration and Citizenship [2011] HCA 52; (2011) 246 CLR 163, 174 [28] (French CJ, Gummow, Hayne and Bell JJ); [2011] HCA 52; Plaintiff S297/2013 v Minister for Immigration and Border Protection [2014] HCA 24; (2014) 255 CLR 179, 190 [37] (Crennan, Bell, Gageler and Keane JJ); [2014] HCA 24.

[66] See, eg, AJL20 (2021) 273 CLR 43, 73-4 [52]-[53], 81 [73] (Kiefel CJ, Gageler, Keane and Steward JJ); [2021] HCA 21; CZA19 v Commonwealth [2025] HCA 8; (2025) 99 ALJR 650, 662 [47], [49] (Gageler CJ, Gleeson, Jagot and Beech‑Jones JJ), 674 [111] (Edelman J); [2025] HCA 8.

[67] Hobart [2023] VSCA 270, [61] (Niall and Whelan JJA).

[68] (2019) 265 CLR 164; [2019] HCA 25.

[69] Ibid 173 [25] (Kiefel CJ, Bell, Gageler, Keane and Nettle JJ) (citations omitted).

[70] Peers v Fletcher [2024] VSCA 275. An application for special leave to the High Court was refused: Peers v Fletcher [2025] HCADisp 20 (Gordon and Beech-Jones JJ).