Plaintiff v Defendants

2 The relief sought in the proceeding, commenced by originating motion on 24 June 2008, is an extension of the time in which to apply for leave to appeal from the decision and order of the Tribunal made on 7 May 2008 and, if time be so extended, leave to appeal.

3 The defendants to the proceeding are the Board and Austin Health - Royal Talbot Hospital ("Austin Health"). In accordance with standard practice the Board abides the decision of the Court and has not participated in the proceeding. The Board adopted the same approach before the Tribunal. Hence both before me and the Tribunal the only effective respondent was Austin Health.

4 The proceeding came on for hearing before me in the Practice Court. It being clearly sensible to do so, and the parties concurring, I heard all applications together on the basis that all matters raised, including the merits of the proposed question of law, would be considered and determined at the one hearing.

Mental Health Act

5 The criteria for the involuntary treatment of a person under the Act are set out in s 8(1). The Act requires a treatment plan to be prepared for each patient and for the plan to be regularly reviewed and revised as required (s 19A). Section 29(1)(a)(i) of the Act provides that an involuntary patient may at any time appeal to the Board against his involuntary treatment order; the hearing of such an appeal must be commenced without delay (s 29(4)). In addition the Board is required to conduct a review of an involuntary treatment order at intervals not exceeding 12 months (s 30(3)). On each appeal and review the Board must review the patient's treatment plan (s 35A). An appeal or review may be conducted concurrently (s 31). If, on an appeal or review for a patient detained in an approved mental health service under an involuntary treatment order, the Board considers that the criteria in s 8(1) do not apply to the patient, the Board must order that the patient be discharged from the involuntary treatment order (s 36(1) and (2)). If, however, the Board is satisfied that the criteria in s 8(1) apply to the patient, the Board must confirm the involuntary treatment order. Finally, the Act provides that a person whose interests are affected by a determination of the Board may apply to the Tribunal for review of that determination (s 120(1)).

6 While I have not seen the application by which the jurisdiction of the Tribunal was invoked, it is evident that the review jurisdiction was invoked by the plaintiff pursuant to s 120(1) of the Act, and s 48(a) of the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act"). Nor have I seen the determination of the Board or any reasons therefor or any materials lodged by the Board with the Tribunal pursuant to s 49 of the VCAT Act.

7 Section 51(1)(a) of the VCAT Act provides that in exercising its review jurisdiction in respect of a decision the Tribunal has all the functions of the decision-maker. Section 51(2) provides that in determining a proceeding for review of a decision the Tribunal may affirm, vary or set aside the decision under review and substitute another decision or remit the matter for re-consideration. Section 51(3) provides that a decision of a decision-maker [here the Board] as affirmed or varied by the Tribunal, or a substitutionary decision made by the Tribunal, is deemed to be a decision of that decision-maker and, subject to contrary order, has effect from the time when the decision under review had effect.

8 Finally, the VCAT Act makes provision for an appeal from an order of the Tribunal to the Supreme Court. In the present case the appeal is to the Trial Division as the Tribunal was constituted by a Deputy President. But a party may only appeal on a question of law and by leave of the Trial Division (s 148(1)). Further, the application for leave must be made within 28 days after the day on which the Tribunal made its order (s 148(2)), although the Court may at any time extend that time limit. On an appeal the Court may affirm, vary or set aside the order of the Tribunal, make an order the Tribunal could have made, remit the matter or make any other order thought appropriate (s 148(7)).

9 As the Tribunal made its order on 7 May 2008 the last day for commencing the application for leave to appeal was 4 June. That means that the application was commenced 20 days late, thus requiring that time be extended.

10 The application for an extension was opposed on the sole ground that the plaintiff would not have a reasonably arguable case if time were extended. This approach was both sensible and realistic, in view of the plaintiff's status as an involuntary patient, the circumstances explaining delay, the absence of prejudice, and the importance of the issue, which would otherwise render it just and appropriate to extend time as the plaintiff seeks.

11 The plaintiff, who at the time of the Tribunal hearing was aged 41, suffered a serious brain injury when he fell from a horse in 1982. He spent time rehabilitating in hospital and was also managed by an area mental health service under a community treatment order. He suffered behavioural difficulties and was imprisoned for an indecent assault. Following that, in August 2002 he was admitted to Mary Guthrie House, a Brain Disorders Unit at Royal Talbot Hospital. In the Tribunal's reasons for decision it was stated that:

"12. He has been in Mary Guthrie House since August 2002. Mary Guthrie House is a specialised, secure rehabilitation facility for adults aged 18 to 65 with co-morbid diagnosis of an acquired brain injury and psychiatric illness.

1. The Unit of Mary Guthrie House, where [the plaintiff] is, has 10 gazetted psychiatric beds for rehabilitation, the aim being to provide assessment and treatment, which will then allow the individual to return to community living. The target average length of stay is 6 to 12 months, which apparently is met in all but a small number of cases. It is a high security facility and [the plaintiff] cannot leave the building without authorisation and all the doors and windows are locked."

12 The plaintiff appealed to the Board to be discharged from his involuntary status and to leave Mary Guthrie House. The Board rejected the application.

13 The plaintiff then applied to the Tribunal for review of the Board's decision.

14 The Tribunal made orders prior to the hearing which may be summarised as follows:

(b) The parties were required to file and 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.

(c) The parties were also 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.

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

15 The plaintiff and Austin Health duly filed and served statements of evidence in accordance with these orders. In the case or Austin Health, on 13 February 2008 it filed and served statements of evidence of five witnesses, two of which were amended forms of statements provided on 29 January. On 29 February the plaintiff by his counsel provided a reply to Austin Health's witness statements. On 12 March Austin Health provided a response to the reply.

16 The review was heard on 18 and 19 March 2008, the plaintiff and Austin Health being represented by counsel and calling witnesses. The plaintiff gave evidence first followed by Austin Health calling two witnesses, Dr Patel and Ms Starritt. Then, on the second day of hearing, counsel for the plaintiff called as witnesses an employee of State Trustees, and a barrister. A third witness for the plaintiff was not available and his statement of evidence was tendered without the need to call him. Austin Health then called their remaining witnesses, Dr Anton and Dr Hopwood. In the course of Dr Anton's evidence the statement of a Dr Hollander was tendered.

17 At the conclusion of evidence the hearing was adjourned with directions for the filing and service of sequential written submissions, commencing with Austin Health by 31 March, the plaintiff by 7 April and any reply by 14 April 2008. Pursuant to these directions Austin Health provided a 15 page submission, the applicant a 14 page submission and Austin Health a four page reply.

18 On 7 May 2008 the Deputy President who constituted the Tribunal published her reasons for decision and by order affirmed the decision of the Board.

19 The question of law stated in the plaintiff's proposed notice of appeal is whether the Tribunal erred in ordering that the plaintiff give evidence first. The question concerns the procedure that the Tribunal adopted when conducting the review.

20 The plaintiff submits that, being an involuntary patient detained against his will, those who contended for the continuation of that status should have borne the burden of establishing the statutory conditions that justified such detention; that is, proof that the s 8(1) criteria applied to the plaintiff. It did not fall on the patient to prove that the s 8(1) criteria were not applicable to him. This approach was said to be supported by the objectives and principles stated in s 4 and s 5 of the Disability Act 2006. In this case, however, the Tribunal required the plaintiff to present his case first which reversed the order in which the evidence should have been given. In proceeding in that way the Tribunal misconstrued its jurisdiction and denied the plaintiff natural justice or procedural fairness. That was because on the review the Tribunal had to be satisfied that the s 8(1) criteria applied to the plaintiff, the obligation or onus as to which was on Austin Health and not on the plaintiff. For this reason Austin Health should have given evidence first to seek to establish satisfaction of the s 8(1) criteria. Then, in his turn the plaintiff could go into evidence to seek to deal with Austin Health's evidence. In reversing the proper sequence of evidence the Tribunal placed an onus on the plaintiff which he did not bear and should not have been required to bear.

21 Alternatively it was submitted that if the procedure was one that was wholly within the Tribunal's discretion to determine, it failed to exercise its discretion according to law. That was because in requiring the plaintiff to present his evidence first the Tribunal applied a policy or practice to that effect without giving any independent consideration to the particular circumstances.

22 It was submitted that the procedure adopted by the Tribunal was so fundamentally flawed that the review miscarried. Counsel summarised the consequences of the procedure adopted as being that:

(a) The plaintiff was made to bear a burden which the Act did not impose upon him.

(b) The respondents were relieved of the obligations required by the Act.

(c) The presentation of the plaintiff's case was put in disarray as he had attended the first day of the hearing without his witnesses, expecting that the respondents would proceed first.

(d) In having to give evidence first, the plaintiff suffered the forensic disadvantage of not knowing what Austin Health's witnesses would say to the Tribunal.

(e) In being allowed to present its case after the plaintiff, Austin Health enjoyed the advantage of knowing the plaintiff's case and was therefore able to fit its case to meet the plaintiff's case.

23 In all, the circumstances were such that the decision of the Tribunal should be set aside and the matter remitted to a differently constituted Tribunal for hearing and determination according to law.

24 These submissions were to be established, if at all, by reference to the course of events at the hearing. The hearing was transcribed and a transcript prepared which I have had the benefit of reading. Counsel for the plaintiff provided me with a list of references to the transcript and in his oral submissions identified those which he relied upon. I now refer to the relevant passages.

25 At the outset of the hearing at the Tribunal counsel for the plaintiff advised that the plaintiff was being brought in with a care worker from the Unit but they had not arrived. After the matter had been stood down for a short time it resumed with the plaintiff's counsel advising that contact had been made and the plaintiff was on his way. Counsel proceeded however to raise another issue and it is at this point that it is necessary to set out the discussion as it appears at pages 2 to 3 of the transcript -

"... 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 COGHLAN: 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.

DEPUTY PRESIDENT COGHLAN: 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.

MR HANCOCK: 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 COGHLAN: 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.

MR HANCOCK: 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 COGHLAN: Who are your four witnesses?

MR HANCOCK: Yes, his two carers and a gentleman who is a barrister that knows him.

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

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

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 pages 4 to 6 of the transcript:

"MR HANCOCK: 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.

MS HARTLEY: 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 COGHLAN: 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?

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

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

MS HARTLEY: If we could finish [the applicant] and I could call each of them this afternoon, subject to the time constraints.

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

MR HANCOCK: In relation to them, deputy president, they're just simply his two carers that take him out on day - - -

MR HANCOCK: 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 COGHLAN: 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.

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

DEPUTY PRESIDENT COGHLAN: 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?

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

DEPUTY PRESIDENT COGHLAN: 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?

MS HARTLEY: Section 8.

MR HANCOCK: Section 8, deputy president."

The Deputy President then commenced referring to the provisions of s 8(1) but interrupted herself to say "Good morning" to the plaintiff who evidently had then arrived. The Deputy President then identified to the plaintiff the persons who were present, following which his counsel stated that the criteria in s 8(1)(b), (c) and (e) were "the main criteria [in s 8(1)] that we say are not satisfied". Counsel then (at page 8) conceded that the applicant suffered from an impulse control disorder and that the applicant had an organic brain disorder, but disputed that he had a psychotic disorder due to his general medical condition or a mood disorder due to his general medical condition. Then, on counsel stating that he did not concede s 8(1)(d), the Deputy President suggested it be assumed that everything was in dispute, with which the plaintiff's counsel concurred. Then, following a discussion about refreshments for the plaintiff his counsel (at page 10) proceeded to open the case. That was followed (at page 14) by an opening by Austin Health's counsel at the end of which the plaintiff (at page 21) commenced giving evidence.

27 Immediately before the plaintiff commenced to give evidence there are some references in the transcript (at page 19) which his counsel referred me to. In these passages the plaintiff's counsel said that he would call the applicant at which point the following exchange occurred:

"DEPUTY PRESIDENT COGHLAN: Mr ..., it's important that I listen to what you have to say, so what happens is people who come here usually step into the witness box here and give their evidence.

[THE APPLICANT]: Why can't I hear from Gloria[1]? I want to hear from Gloria.

DEPUTY PRESIDENT COGHLAN: We'll hear her in due course. It might be easier perhaps if you sat at the table, Mr Hancock. You can sit next to Mr Hancock. You just sit there, just so that I can hear better. I can hear you better from there. I don't mind whether he is sworn in or not. Would you like to take the oath and tell me about it?"

28 The next reference in the transcript on which counsel relied occurred at page 123 in the re-examination of the barrister called by the plaintiff. The passages are these:

DEPUTY PRESIDENT COGHLAN: We're just waiting to hear if somebody else is ready yet."

29 The next passages relied on by counsel appear at page 128 in the course of a discussion between counsel and the Deputy President just prior to Dr Anton giving evidence:

"MS HARTLEY: I should indicate there are a few matters that I wanted to take Dr Anton to arising from issues that came up yesterday, so I would want to have leave to ask her a few questions in addition to her statement.

DEPUTY PRESIDENT COGHLAN: All right. Call Dr Anton. [Addressing the applicant -], Dr Anton is going to come in and give her evidence now. She is going to be sitting there and while she is doing that, you'll have your back to her, you won't be able to see her.

[THE APPLICANT]: I want to go back home (indecipherable speech).

MR HANCOCK: Can we perhaps just move [the applicant].

DEPUTY PRESIDENT COGHLAN: Yes. Just move around so you can see everybody, otherwise Dr Anton, you'll have your back to her."

30 The next passages relied on by counsel appear at pages 131 line 17, 132 line 16, and 135 line 31, where the applicant interjected with a statement.

31 Further on, in the evidence in chief of Dr Anton, at page 141, the following occurred:

"[THE APPLICANT]: Excuse me (indecipherable speech)

MS HARTLEY: I just wanted to ask you this - - -

DEPUTY PRESIDENT COGHLAN: We'll come back to you in a minute.

[THE APPLICANT]: I just wanted to say (indecipherable speech) if I come off the medication, I won't go downhill (indecipherable speech)."

As will be apparent this was an interruption in the course of the evidence.

32 The next reference was to page 143 of the transcript when Dr Anton was still in the course of giving evidence in chief and the Deputy President made an observation as to wanting to know what the applicant's parents told Dr Anton concerning the plaintiff's proposal as to his living circumstances should his application be granted.

33 The next reference was to page 146 where the Deputy President and counsel for the plaintiff were discussing his treatment plan which had been prepared by the psychiatric registrar at the Unit where the plaintiff resided and who was not giving evidence. This also occurred in the course of Dr Anton's evidence in chief.

34 The next reference was to an interjection by the plaintiff, at page 155 in the cross-examination of Dr Anton, where the plaintiff is recorded as saying "Oh Christ" (indecipherable speech) and then asking (it appears) that that be removed from the record.

35 The next reference was to page 157 where the plaintiff further interjected in the cross-examination of Dr Anton, as follows:

"[THE APPLICANT]: Excuse me, ma'am. Excuse me, boss. Will I be able to get in that box for two minutes.

DEPUTY PRESIDENT COGHLAN: You'll just have to wait until the doctor is finished.

36 The final reference relied on was to page 198 where, immediately following Dr Anton's evidence, the following is recorded:

"[THE APPLICANT]: Would I be able to get in the box, Your Honour?

DEPUTY PRESIDENT COGHLAN: No, you've had your turn. Do you remember?

[THE APPLICANT]: Yes, I do, but I just want to get in the box just to explain myself.

DEPUTY PRESIDENT COGHLAN: Do you remember being in the box?

DEPUTY PRESIDENT COGHLAN: Yes, so you've had your turn.

DEPUTY PRESIDENT COGHLAN: You don't get another turn.

[THE APPLICANT]: (indecipherable speech) excuse me, what's your name?

DEPUTY PRESIDENT COGHLAN: Deputy President Coghlan.

DEPUTY PRESIDENT COGHLAN: Deputy President Coghlan.

Counsel for Austin Health then stated that the final witness, Dr Hopwood, was waiting to give evidence, and he was duly brought in and commenced his evidence.

37 To these references I would add two more based on my perusal of the transcript. The first reference is at page 65 where, the plaintiff having given evidence, counsel for Austin Health stated that she would call Dr Patel. At that, counsel for the plaintiff sought an order for witnesses to be out of the hearing room. On being asked by the Deputy President why he wanted all witnesses out, counsel responded with the single word "Fairness". The Deputy President then asked Dr Anton, the only other witness present, to leave the room. Dr Patel then commenced his evidence.

38 The second reference I would add is at page 106 where at the completion of Ms Starritt's evidence there was a discussion about the next day's hearing. Counsel for the plaintiff inquired as to the order of witnesses to which the Deputy President responded that she assumed "your three will start off and then we will have the balance of the respondent's witnesses". Counsel did not demur to that assumption, and the discussion continued.

39 I now refer to the way in which the plaintiff's counsel relied in this Court on the above passages in the transcript.

40 The references at pages 2 to 3 were central to the plaintiff's submissions. It was submitted that the plaintiff's counsel had raised as an "issue to be resolved before we start ... which party proceeds first". That was, in effect, a submission that Austin Health should go first. The Deputy President rejected the proposition outright, describing it as not "normal procedure" and ruling that the plaintiff, who she described as "the applicant" in a "merits review", present his case first followed by the respondent. The plaintiff's counsel before the Tribunal accepted the ruling.

41 In addition to submitting that the Deputy President had ruled as to the order of presentation of each case, it was submitted that the description of the plaintiff as the applicant, and the description of the case as a merits review in which the applicant must go first, indicated an onus of proof had been cast on the plaintiff.

42 As to the references at page 19, it was submitted that they showed the plaintiff, at his first opportunity to respond to the proposition that he give evidence first (for he was not present during the earlier ruling), and when his counsel said that he would call him, protesting at having to give evidence before Dr Anton. The plaintiff is seen to ask why he cannot hear Dr Anton's evidence. This was to be understood as a request that he hear her evidence before he gave his evidence. The plaintiff's question was understandable, but ignored. His counsel tells him that he is to go first; that is, the earlier ruling stands and is applied.

43 Continuing on, it was submitted that the references at page 123 raised the possibility that the plaintiff was in effect asking for leave to give further evidence. Assuming that to be so, it was a result of the error of requiring the plaintiff to give evidence first.

44 Counsel then commented as follows concerning the references at page 128. He first noted that Austin Health's counsel was given leave to adduce some additional evidence in chief. The leave was granted without the plaintiff or his counsel being asked about the application and without any consideration being given to whether, if leave were granted, the applicant would be given the opportunity to give evidence in relation to the further evidence of Dr Anton. Then, leave having been given and there being a reference to the applicant having his back to Dr Anton, the applicant twice interjected indicating, it was submitted, that he found the situation intolerable.

45 Next are the references at pages 131, 132 and 135. The plaintiff's interjection at page 131 followed Dr Anton's answer to a question in chief as to what sorts of people there were (at the Unit) for the plaintiff to communicate with; immediately after Dr Anton answered the plaintiff interjected "The question was who do I communicate with". The interjection dispelled any notion that the plaintiff was not aware of what was happening. The same is true of the interjections at pages 132 and 135. These references also indicated, it was submitted, the need to allow the plaintiff a proper opportunity to say what he wanted to say; the appropriate way to have done that, not only as a matter of proper procedure but having regard to him being under a disability, was for him to have given his evidence after Austin Health had given its evidence.

46 Then, the significance of the reference at page 141 was that the Deputy President never got back to the plaintiff as to what he wanted to say concerning his medication. Being a disabled person with difficulty in controlling when he spoke, it was important to ensure that he was not shut out.

47 The next reference at page 143 was relied on as showing the admission of hearsay evidence. In fact, the evidence was allowed over the objection of the plaintiff's counsel. I note further that subject to observing the rules of natural justice, s 98(1)(b) and (c) of the VCAT Act allowed the Tribunal to receive the evidence. In my view the failure of the plaintiff's parents to give evidence, and the relevance of their attitude in relation to the plaintiff residing at the property where they resided, made it well understandable that the Deputy President desired to be informed of their position.

48 Likewise, in my view, the reference at page 146 provides no support to the plaintiff's case before me, and I note that counsel did not speak to it.

49 The next reference was that at page 155 which counsel said showed the plaintiff having an awareness of what was happening.

50 More important however was the reference at page 157 where the plaintiff told the Deputy President that he wanted to give evidence, clearly in response to evidence of Dr Anton. It was submitted that it could be inferred that the plaintiff wanted to rebut evidence of Dr Anton. The Deputy President did not refuse the request but implicitly allowed it telling the plaintiff he would have to wait until Dr Anton had finished. However, the references at page 198 show that when Dr Anton's evidence concluded the Deputy President refused the plaintiff's personal renewed request to give further evidence. While pointing this out, and relying on what happened as supporting his submission that the ruling that the plaintiff give evidence first was wrong, counsel acknowledged that the plaintiff's counsel did not request leave to recall the plaintiff.

51 Counsel for Austin Health submitted that the appeal, and application to extend time, must fail. Essentially, that was because:

(a) It was open to the Tribunal to conduct the review as it did in relation to the order of calling evidence;

(b) The Tribunal did not place an onus of proof on the plaintiff; and

(c) Requiring the plaintiff to call his evidence first did not thereby deny him, or result in him being denied, natural justice.

52 These points were to be understood in the context of the statutory framework provided by the Act and the VCAT Act, the nature of the proceeding by review, and the relevant events that occurred in the course of the hearing before the Tribunal. It is convenient to refer to these matters in concluding on the parties' submissions.

53 Section 51(1) of the VCAT Act has the effect that on the subject review the Tribunal was placed in the position of the Board with all of the decision-making functions of the Board. Those functions are found stated in the Act to the relevant provisions of which I referred earlier.

54 The VCAT Act makes provision for the conduct of hearings before the Tribunal; see Part 4, Division 7 which commences, in s 97, with the requirement that:

"The Tribunal must act fairly and according to the substantial merits of the case in all proceedings."

55 Then, generally as to procedure, s 98 provides that:

(b) is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures;

(c) may inform itself on any matter as it sees fit;

(d) must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit.

(3) Subject to this Act, the regulations and the rules, the Tribunal may regulate its own procedure.

56 On the subject of evidence, s 102(1) provides that:

"(1) The Tribunal must allow a party a reasonable opportunity-

(b) to examine, cross-examine or re-examine witnesses; and

57 The Tribunal's discretion as to the order in which evidence would be given was to be considered in the light of the nature of the hearing and the issues to be determined. As mentioned, in conducting the review the Tribunal was placed in the position of the Board when it considered the matter and, in that position, had to reach its own conclusions on the evidence placed before it. That evidence could and should include evidence of relevant matters that had occurred since the Board made its decision. It is axiomatic that that would be so given the case involved a person's liberty and the need for evidence concerning that person's mental condition to be up-to-date. It is also required by s 22(2) of the Act that in determining a review or appeal the Board must have regard primarily to the patient's current mental condition and consider the patient's medical and psychiatric history and social circumstances. It is also a consequence of the requirement of s 36 of the Act that if the s 8(1) criteria do not apply to the patient, an involuntary treatment order must be discharged, which thus obliges and requires up-to-date information. It is apparent from the transcript and from the Tribunal's reasons for decision that the Deputy President was aware of the issues that required determination. She herself raised the matter of s 8(1) at an early stage, plainly for the purpose of seeking to ascertain what was in issue.

58 The review itself was conducted as a re-hearing to be determined on the basis of evidence led before, and submissions made to, the Tribunal. In the circumstances a hearing of this nature was the appropriate way to conduct the review.

59 The plaintiff sought to make something of the Deputy President's description of the plaintiff as "the applicant" and the proceeding being a "merits review", the suggestion being, as I understood it, that it reflected the Deputy President's approach to the review as though it was an appeal on a question of law in which the plaintiff bore an onus of proof. I consider this to be a misunderstanding of the Deputy President's remarks. The fact is that the plaintiff was an applicant in the sense that by his appeal he had initiated a proceeding before the Board, and the Tribunal was to re-hear the matter. Of course the Act required consideration of the s 8(1) criteria, but the mere reference to the plaintiff as "the applicant" could not reasonably found the conclusion that the Deputy President regarded the plaintiff as bearing an onus to prove a case. Moreover, in my view the expression "merits review" amounts to no more than a recognition of the task which was to determine whether the plaintiff's appeal should succeed on the evidence. In the event that it succeeded, it could properly be said that the plaintiff had succeeded on "the merits".

60 Consistently with this understanding of the role of the Tribunal on the review, and in conducting the review as a re-hearing on the basis of the evidence led before her, the Deputy President is seen by her reasons to have considered the matter afresh for herself and concluded on the merits without regard to the reasons for decision of the Board. She was entirely correct in doing so.

61 It will be apparent, and it is not to be overlooked, that no attack is made on the ultimate decision. Of course any attack would have to be on a question of law, and the decision reads as one that turns on conclusions of fact.

62 Thus far I have been concerned to consider the nature of the hearing to be had under the Act and the VCAT Act in the circumstances of the case, and the hearing that was had. I now turn to answer the question of law.

63 In my view it was open to the Deputy President to require the plaintiff to give evidence first. The VCAT Act amply empowered her to do so, as a matter of discretion, subject to the obligation to act fairly and according to the substantial merits of the case (s 97), to afford natural justice (s 98(1)(a)), and to allow the plaintiff a reasonable opportunity to call and give evidence, examine witnesses and make submissions (s 102(1)(a), (b) and (c)). Perusal of the transcript reveals that these obligations were met.

64 It is however objected that the Deputy President erred as a matter of law when she required the plaintiff to give evidence first. The error was that she did so by way of applying a policy to that effect as distinct from exercising a discretion in light of the relevant circumstances. I do not accept that the Deputy President unthinkingly applied a policy as to the order of evidence. I understand her to have indicated the "normal procedure" in a review such as the present. Whether or not that be a "normal procedure", I do not accept that it was applied without regard to the nature and circumstances of the case, notwithstanding the initial firmness with which the Deputy President expressed herself. Moreover, I consider that requiring the plaintiff to give evidence first was open and proper in the exercise of discretion in the circumstances and if anything had the benefit to the plaintiff of enabling him to address his concerns at the outset.

65 But there is in any event a fundamental answer to the issue, and that is the way in which the plaintiff's counsel handled the situation. First, when he raised the issue of the order of evidence he did so from the point of view of convenience as he had organised his witnesses for the next day. When the Deputy President disabused him of the understanding gained from a member of the 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 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. The contrast in this respect is seen in the plaintiff's counsel's objection of "Fairness" at page 65 of the transcript. Thereafter the hearing continued with witnesses being called and giving evidence on the agreed basis, and without the plaintiff's counsel objecting to the procedure. Notwithstanding that the plaintiff may now be advised that the procedure adopted subverted the proper order of calling evidence with the alleged consequences of a denial of natural justice, the fact is that he was represented by experienced counsel who perceived no unfairness in the procedure. In my view, the plaintiff did not as a result suffer any denial of natural justice. For these reasons, I reject the contention that the review miscarried.

66 The above approach of the plaintiff's counsel also provides the answer to the complaint that the plaintiff was precluded from giving further evidence. The fact is that regardless of the intercessions of the plaintiff in the course of the hearing and his then stated desire to give further evidence, his counsel did not seek leave to recall him. That must be taken as advised and in consequence as precluding any criticism of the Deputy President's conduct of the review in that regard.

67 It remains to mention that in my view the Deputy President's reasons for decision clearly indicate that the Deputy President did not approach the determination of the issues on the basis that the plaintiff had an onus to prove his appeal or that the s 8(1) criteria did not apply to him. I accept as correct the submission of Austin Health that the reasons make apparent that the Deputy President approached the task on the basis that on a consideration of the evidence she needed to be affirmatively satisfied that the criteria did apply. This approach was correct, for considerations of the onus of proof really had no part to play in the hearing and determination of the review; see McDonald v Director-General of Social Security[2]; Transport Accident Commission v Bausch[3]; Medical Practitioners Board of Victoria v McGoldrick[4]; Golem v Transport Accident Commission[5].

68 Finally as to the complaint of being denied natural justice, it is to be borne in mind that the case was conducted on witness statements filed ahead of the hearing. Thus the plaintiff's counsel had the advantage of knowing the evidence in chief of Austin Health's witnesses and, as it turned out, it was only in the case of Dr Anton that some additional evidence in chief was given. Thus the plaintiff's counsel knew the case to be met. Another factor is that the plaintiff did not call medical evidence; thus the order of witnesses did not disadvantage the plaintiff on the medical witness side. These factors are relevant to a consideration whether the order of calling witnesses occasioned a denial of natural justice to the plaintiff. Another factor is the absence of any request by the plaintiff's counsel to recall a witness or call additional evidence. In my view, however the matter be regarded, there was no denial of natural justice.

69 For these reasons the proceeding will be dismissed. There is no point in extending the time in which to appeal as to do so would be a futility; see Jackamarra v Krakouer[6].

[2] [1984] FCA 57; (1984) 1 FCR 354.

[3] [1998] 4 VR 249.

[4] [1999] VSCA 215, [20].

[5] [2002] VCAT 319.

[6] (1998) 145 CLR 516, 540 [66].