Sandbach v Legal Services Board (Legal Practice) [2019] VCAT 623

1. The Respondent and its delegate, the Victorian Bar, are released from the implied undertaking in Harman v Secretary of State for the Home Department,[1] in respect of all documents produced to the Tribunal in this proceeding in response to summonses to produce documents directed to:

1. Campus Martius Pty Ltd; 2. Dever's List Pty Ltd; 3. Mr Andrew Yeo, the Applicant's trustee in bankruptcy,

1. any future application that may be made by the Applicant for a practising certificate; and
2. any proceedings seeking an order that the Applicant's name and other particulars be removed from the Supreme Court roll (as that term is defined in s 6 of the Legal Profession Uniform Law (Vic)).

1. On 13 November 2018, the Victorian Bar Council, as the delegated authority of the Victorian Legal Services Board under the Legal Profession Uniform Law (Vic) (LPUL), determined under ss 89 and 94 of the LPUL that:
   • (a) the Applicant was not a fit and proper person to hold a practising certificate;
   • (b) it should cancel his practising certificate from 31 December 2018 and refuse his application to renew his certificate for the 2019 financial year; and
   • (c) the Applicant should not be entitled to apply for a practising certificate for 4 years from the date the cancellation becomes effective.
2. The maximum period the Bar Council can determine an applicant not be permitted to apply for a practising certificate following cancellation is five years.
3. The Applicant applied to the Victorian Civil and Administrative Tribunal (Tribunal) for review of the decision.
4. On 21 December 2018, having received undertakings from the Applicant in relation to complying with his obligation to file Business Activity Statements and income tax returns, and making provision for a substantial proportion of his fee income to be directed to reduction of his tax liability, the President, Quigley J granted a stay of the determination to cancel the practising certificate, pending review.
5. The hearing was fixed for 9 and 10 April 2019.
6. The original determination of the Bar Council was based on the Applicant's conduct in respect of his tax affairs. That encompassed what it described as tax related conduct, the Applicant's conduct in court proceedings relating to his tax affairs and his conduct when appearing before a counsel committee hearing on 12 February 2018.
7. The tax related conduct included claiming unlawful deductions, failing to lodge returns and pay GST and previous convictions for failing to lodge returns. The unlawful deductions related to the use by the Applicant of a device or scheme, where he assigned fees derived from his practice as a barrister to Campus Martius Pty Ltd (Campus Martius), a company of which his wife was sole director and his wife and sons were the only shareholders. He did so in purported payment of interest accruing on the book debts with an initial face value of approximately $2,000,000, which Campus Martius had purchased, for approximately $200,000, from lenders to an unsuccessful farming venture in which the Applicant had invested many years earlier.
8. By a succession of charges granted by the Applicant in favour of Campus Martius, he gave Campus Martius security over the full amount of the debts which it had purchased from his lenders. By 2018, the book value of the debts, with accrued interest, stood at $52,000,000. From 2009, the Applicant assigned fees he earned as a barrister to Campus Martius in purported discharge of his obligation to repay the debts. The assigned fees were not declared as income by the Applicant and no tax was paid in respect of them.
9. An audit into his financial affairs conducted by the Taxation Commissioner in 2017 found the arrangements by which Campus Martius purchased the debts, the Applicant granted Campus Martius the charge and Campus Martius was paid the sum of his professional fees, without those fees first being declared and subject to tax, was an artifice, fraud or sham designed to enable the Applicant to evade tax.
10. The Applicant sought judicial review of the decision by the Taxation Commissioner before the Administrative Appeals Tribunal (AAT) and Federal Court in respect of his tax affairs following the audit. The AAT and the Federal Court made adverse findings about the Applicant's conduct both in respect of the Campus Martius scheme and the manner in which he conducted the review proceedings. In subsequent bankruptcy proceedings brought by the Taxation Commissioner, the court found he had engaged in conduct apt to mislead the court.
11. The Bar Council also made adverse findings about the Applicant's conduct following his appearance before a counsel committee on 12 February 2018. The Bar Council found the Applicant failed to understand, or was unwilling to confront, the seriousness of the conduct identified in the taxation proceedings or to address what appeared to be a disregard of the law and his professional obligations to be truthful and act with integrity.
12. In the lead up to the hearing of the application to review the determinations of the Bar Council, at the request of the Respondent, the Tribunal issued summonses to produce documents directed to;
    • (a) the Applicant;
    • (b) his wife, Maria Sandbach;
    • (c) his clerk, Dever's List Pty Ltd;
    • (d) his trustee in bankruptcy Andrew Yeo, of Pitcher Partners; and
    • (e) Campus Martius Pty Ltd.
13. A substantial amount of material was produced and released to the parties for inspection. Production of the documents sought from the Applicant and Campus Martius was not straightforward. The Respondent maintained the Applicant did not, initially, fully comply with his summons. Orders were made by the Tribunal requiring the Applicant and, ultimately, Maria Sandbach to conduct further searches, make further inquiries and swear affidavits as to the steps they had taken to ascertain the whereabouts of the documents which had not been produced in response to the summonses to the Applicant and Campus Martius.
14. Further documents were then produced and again released for inspection. That led in turn to further summonses to produce documents being issued, at the request of the Respondent, to Maria Sandbach and Michael Sandbach, one of the sons of the Applicant and Maria Sandbach. The documents sought in those summonses were duly produced and again inspected. Campus Martius did not produce any documents by the due date.
15. It was the Respondent's position that the material produced in response to these summonses provided evidence of further and more serious wrongdoing by the Applicant in three ways.
16. First, in relation to Campus Martius, the Respondent contended the additional materials revealed that the Applicant was the person exercising effective control of Campus Martius, not the listed directors, being Maria Sandbach and, following her resignation in mid-2018, David Munro, a retired barrister. Mr Munro had been a partner in the original farming venture which had collapsed. It was Campus Martius' purchase, from the lenders, of $2,000,000 worth of the partnership's debt which became the device the Taxation Commissioner found was used by the Applicant to evade payment of tax on his earnings as a barrister.
17. Secondly, the Respondent contended that the additional materials revealed that Campus Martius, having received the assigned fees from the Applicants' practice as a barrister, returned them to the Applicant as "consultant's fees". Campus Martius did not declare any income other than the fees assigned to it. Neither Campus Martius nor the Applicant declared as income the moneys passing from the Applicant's clerk to Campus Martius and back to the Applicant. This in turn generated an inquiry into the source of funds used to purchase the substantial assets acquired in Maria Sandbach's name over that period, as her declared income was insufficient to fund their purchase.
18. Thirdly, the Respondent contended that the additional materials revealed that the Applicant had engaged in conduct designed to defeat the efforts of his trustee in bankruptcy to collect income derived from his practice as a barrister, on behalf of his creditors (principally the ATO), by the use of a scheme involving assigning debts for legal fees generated by him from Campus Martius to his son Michael, to hold on trust for, and distribute to, himself and his wife.
19. Following its analysis of the additional materials, the Respondent put the Applicant on notice it intended to rely on the additional materials and, based on them, characterise the Applicant's conduct as more serious than that found by the Bar Council on the evidence available to it. Had the Tribunal accepted the Respondent's contention, that could have resulted in more serious findings being made about the Applicant's conduct and could have resulted in disqualification from reapplying for a practising certificate for the maximum five year period allowed for under the LPUL.
20. On 26 March 2019, the Applicant and Respondent filed proposed consent orders. By those proposed consent orders, amongst other things, the Respondent consented to the Applicant being granted leave to withdraw his application for review and the Applicant consented to the release of the Respondent from its Harman undertaking[2] in respect of all documents obtained by it pursuant to the summonses to witness directed to the Applicant, Maria Sandbach, Michael Sandbach, Campus Martius, Dever's List Pty Ltd and the Applicant's trustee in bankruptcy, Andrew Yeo.
21. An Applicant cannot withdraw an application for review of a decision without leave.[3] Having regard to the evidence on which the Bar Council relied at the original hearing and the findings and determinations based on that evidence, the fact the substantive hearing had not yet commenced, the role of the Respondent in the proceeding, that is as the regulator, and its consent to the grant of leave, notwithstanding the matters revealed in the additional material, I was satisfied it was appropriate to grant leave to the Applicant to withdraw the application.
22. I was, however, concerned about the terms of the proposed consent order in respect of the release of the respondent from its Harman undertaking for three reasons. First, the terms of the release sought were broad and vague. Release was sought "for the purposes of any other proceedings between the parties." Second, the documents in respect of which release was sought came not only from the Applicant, but also from third parties. Two of those parties, the Applicant's clerk and his trustee in bankruptcy, could properly be described as independent third parties. The other three, Maria Sandbach, Michael Sandbach and Campus Martius are closely associated with the Applicant and are better characterised as related third parties. There was no material before the Tribunal indicating whether the consent of any of the independent or related third parties had been sought and, if so, their attitude to the use by the Respondent of the materials provided by them for any other purpose or for use in any other proceeding. Thirdly, there was no identification of any special circumstances justifying departure from the general rule preventing use of documents obtained by coercive orders in a proceeding for other purposes.
23. In Hearne v Street, Hayne, Heydon and Crennan JJ articulated the operation of the Harman undertaking in these terms:

"Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits."[4]

1. In this case, the independent and related third parties had, like the Applicant himself, produced documents under compulsion, that is, in response to a summons to produce documents, a coercive order of the Tribunal. The summons was issued in this proceeding. It follows from resolution of the substantive proceeding by the grant of leave to withdraw that none of the documents provided pursuant to the coercive orders were received into evidence. There had been no decision made by the Tribunal as to whether all or any of the documents provided pursuant to those coercive orders were relevant and admissible in the review proceeding.
2. Although the High Court in Hearne v Street articulated the principle by reference to prohibition on use by a party to litigation of documents produced by another party as a result of compelled disclosure, it is clear the principle applies equally to protect documents provided by a third party under compelled disclosure.
3. It has long been accepted that special circumstances must exist in order for leave to be granted to use documents for any purpose other than that for which they were produced, if they have not been received in evidence. In Springfield v Bridgelands, Wilcox J set out the test in these terms:

"For "special circumstances" to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present. The matter then becomes one of the proper exercise of the court's discretion, many factors being relevant. It is neither possible nor desirable to propound an exhaustive list of those factors. But plainly they include the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the document came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding."[5]

1. I indicated to the parties I was not prepared to make an order in respect of the release of the Respondent from its Harman undertaking on the basis of the materials before me, by reason of the concerns I have identified. I made orders in terms of the minutes of consent orders save for the order relating to release from the Harman undertaking and gave the parties the opportunity to file any further materials on which they sought to rely in respect of the release from the undertaking.
2. The Respondent has now filed extensive and helpful materials and submissions. The Applicant has confirmed he consents to the release of the Respondent from its Harman undertaking. That consent, as I understand it, is intended to apply not only in respect of the documents produced by him, but insofar as it may carry weight in respect of the third party documents as well.
3. The Respondent has now sought the consent of the five third parties. It has filed an affidavit, exhibiting letters it wrote requesting their consent, and the responses it received. Dever's List Pty Ltd has consented. Mr Yeo, the trustee in bankruptcy, does not oppose the release.
4. Maria Sandbach and Michael Sandbach each responded indicating that they did not consent and requesting that the documents they produced be returned to them. Maria Sandbach included a specific request that any copies of the documents produced by her be destroyed. Maria Sandbach also purported to respond on behalf of Campus Martius. She advised she had spoken to Mr Munro, the current director of Campus Martius, who indicated he did not consent to the release of the Respondent from the undertaking.
5. By the time the matter came on for hearing in respect of the release from the undertaking, each of Maria and Michael Sandbach had written again to the Tribunal. Each advised they now consented to the release of the Respondent from the undertaking in respect of all documents provided by them in response to their summonses. Maria Sandbach again advised she had spoken to Mr Munro and he now also consented on behalf of Campus Martius.
6. Maria Sandbach is no longer a director of Campus Martius. She resigned soon after she was compulsorily examined by the Applicant's trustee in bankruptcy in relation to, amongst other things, the roles played by herself and the Applicant in respect of the management of the affairs of Campus Martius at the time it was receiving fees assigned by the Applicant to it. She was replaced by Mr Munro. There is no evidence before me that, at least since she resigned as director, she has had any role in the management of its affairs or is authorised to speak on its behalf.
7. Having regard to the events set out below, I do not consider any assertion by Maria Sandbach as to Mr Munro's attitude to release on behalf of Campus Martius to be reliable. When the summons to produce documents was issued, at the Respondent's request, requiring Campus Martius to produce certain documents in this proceeding, it was served on Campus Martius at its registered address, which is the home address of the Applicant, Maria Sandbach and Michael Sandbach. An affidavit of service was filed, deposing that it was served personally on the Applicant, as a person over 18, at that address. Service on a person, over the age of 18, at the registered address of the company, is valid service on the company.
8. No documents were produced by Campus Martius in response to that summons by the time fixed for compliance. The Respondent foreshadowed an application for the issue of a warrant in respect of the non-compliance by Campus Martius with the summons. As the ASIC search for Campus Martius revealed that Mr Munro, by then the sole director, had a different address to the registered address of Campus Martius, the Tribunal directed a letter, addressed to Mr Munro, be sent to him at his address, giving him notice of the summons to produce the documents, a further opportunity to comply and notice of the date for hearing of the application for the issue of a warrant for non-compliance.
9. On 12 March 2018, Mr Munro's daughter, Associate Professor Jane Munro,[6] wrote to the Tribunal. She advised:

"[Mr Munro] is a retired barrister, having not worked for many years now as he has dementia ... [H]e ... Told us last week ... That last year he agreed to sign on as a director for Alan Sandbach's company. This is problematic given he does not have the cognitive capacity to carry out a director's governance responsibilities. I immediately rang Alan, who reported he was unaware of dad's diagnosis and lack of capacity ..."

1. Associate Professor Munro offered to provide a report from her father's general practitioner as to his medical condition. At a directions hearing held on 15 March 2019, the Applicant and the Respondent advised they did not challenge what Associate Professor Munro reported as to her father's condition and did not require the production of a medical report.
2. Since then the Tribunal, the Applicant and the Respondent have all proceeded on the common acceptance that Mr Munro did not have capacity. No evidence has been provided to the Tribunal that Mr Munro has been replaced as a director. As a result, the Tribunal has proceeded on the basis there is no director on record able to act on behalf of Campus Martius in respect of the summons to produce documents.
3. Ultimately, following the directions requiring the Applicant and Maria Sandbach to swear affidavits deposing to the searches and inquiries they had made in respect of the documents subpoenaed from Campus Martius, the relevant Campus Martius documents were located and produced in satisfaction of the Campus Martius summons.
4. However, this history leads me to conclude that I am not prepared to act on Maria Sandbach's hearsay assertion as to Mr Munro's attitude to release of the Respondent from its Harman undertaking on behalf of Campus Martius. Even if Mr Munro did tell Maria Sandbach he initially opposed and then later consented to the release of the Respondent from the Harman undertaking in respect of the documents ultimately produced on behalf of Campus Martius, I am not satisfied, on the material available to me, that he had the capacity to withhold or give consent.
5. There is no one currently with capacity, or holding him or herself out as authorised to give or withhold consent on behalf of Campus Martius to the release of the Respondent from its Harman undertaking.
6. In these circumstances, I am satisfied the absence of a director competent to give or withhold consent is not a bar to release, if I am otherwise satisfied special circumstances exist justifying release. The activities of Campus Martius are inextricably linked to the activities of the Applicant. There is evidence, which on its face and absent other evidence to the contrary, is capable of supporting the inference that the Applicant controls the activities of Campus Martius. There is no evidence that releasing the Respondent from its Harman undertaking in respect of Campus Martius documents would adversely affect the interests of any independent third parties. Insofar as release may adversely affect the interests of Maria Sandbach, Michael Sandbach, or the other child of Alan and Maria Sandbach, who I am told is also a shareholder of Campus Martius, I do not consider, in the circumstances, that any potential adverse impact on them should operate as a bar to release if I am otherwise satisfied it is appropriate to do so.
7. Dealing then with the purposes for which release is sought. There is one other proceeding before the Tribunal in which the Applicant is a party. He is the respondent in a separate, unrelated disciplinary proceeding (J52/2018), in respect of his conduct in a matter in which he appeared as counsel. That proceeding is brought under the LPUL by the Legal Services Commissioner. In submissions, the Respondent has confirmed it does not seek to use any of the material the subject of this application for release in proceeding J52/2018.
8. The original proposed consent order was, as noted, in broad and vague terms. The Respondent's initial submission was to permit it to have access to the documents so that they may be used by the Legal Services Board and its delegate for any proper purpose under the LPUL. That has since been refined to two identified prospective proceedings:
   • (a) any future application that may be made by the Applicant for a practising certificate; and
   • (b) any proceedings seeking an order that the Applicant's name and other particulars be removed from the Supreme Court roll (as that term is defined in s 6 of the LPUL).
9. The Tribunal, in exercising its review jurisdiction, is not limited to a consideration of the material before the original decision maker. Had the Applicant not sought leave to withdraw his application for review, the Respondent could have, and indeed, as Mr Scotter advised, would have relied on the additional material to support a submission that the Tribunal should find the Applicant engaged in further and more serious wrongdoing than that known to the Bar Council. Had the application for review proceeded, the Tribunal would have had all the functions of the original decision maker[7] and it would have been open to the Tribunal to affirm the decision under review, to vary it, or to substitute its own decision.[8] The Tribunal is not bound by the decision of the original decision maker and there is no rule of law or practice which operates to limit the extent of any sanction imposed on review to that imposed by the original decision maker. Had the review proceeded, the Tribunal could have taken this additional information into account in assessing and making findings as to the nature and gravity of the Applicant's conduct. Had it found the Applicant was not a fit and proper person to hold a practising certificate, it could have cancelled his certificate and disqualified him from applying for another for a period in excess of four years and up to five years.
10. In such an event, its findings, reasons, and determinations would have properly been matters which could be put before the Legal Services Board if any future application for a practising certificate were made by the Applicant. Similarly, its findings, reasons and determinations would have properly been matters to be put to the Supreme Court, if application were made at some future date to remove the Applicant's name from the Roll.
11. No findings, reasons or determinations were made by the Tribunal as a result of the consent by the parties to withdraw the application for review. But, just as the Bar Council findings are relevant to a proper assessment of any future application for a practising certificate, or removal from the Roll, so, too, in my view, is the additional material obtained whilst the application for review was pending, for the purpose of use in this proceeding.
12. It is important to note, when considering these identified purposes for which release is sought, that they are separate but related proceedings from the original Bar Council proceeding, which then resulted in the application for review before the Tribunal. It is self-evident that the findings and determination in the Bar Council proceeding are proper matters for the Legal Services Board to consider when considering any future application for a practising certificate, after the period of disqualification has expired. It is equally self-evident they are also proper matters for the Supreme Court to consider, as bearing on whether the Applicant is a fit and proper person to remain on the Roll, in the event the Board, or the Supreme Court of its own motion, sought to remove the Applicant's name.
13. So far as the future application for a practising certificate is concerned, Mr Scotter submitted that it was in the public interest that the Board have access to all relevant material in determining whether the Applicant is fit to practice in future.
14. I am satisfied this additional information is relevant to the Legal Services Board's assessment of the Applicant's fitness to practice, were he to apply for a practising certificate in the future. On its face, it is capable of supporting a conclusion the Applicant engaged in further and more serious wrongdoing in relation to his tax affairs and his bankruptcy than that known to the Bar Council at the time of its decision to cancel his practising certificate. In fixing the time which must run before the Applicant could reapply for a practising certificate, the Bar Council, on the evidence available to it, made adverse findings about the Applicant's failure to understand, or unwillingness to confront, the seriousness of the conduct identified in the taxation proceedings or to address what appeared to be a disregard of the law and his professional obligations to be truthful and act with integrity.
15. A full appreciation of the gravity of the Applicant's conduct in the period leading up to the cancellation of his practising certificate is relevant to an assessment of his fitness to hold a practising certificate in the future. The Legal Services Board is not confined, if called on to determine in the future whether the Applicant is a fit and proper person to hold a practising certificate, to a consideration of the matters known to the Bar Council at the time of cancellation and the Applicant's conduct since cancellation. Evidence of what could be found to be further misconduct, occurring before cancellation, is clearly also relevant. It is relevant to an assessment of the gravity of the Applicant's misconduct in relation to his tax affairs and bankruptcy, insofar as that bears on the assessment of his fitness to hold a practising certificate at any future time. It may also be relevant to an assessment of the Applicant's candour, and conduct generally, in the proceedings before the Bar Council which led to its decision to cancel his practising certificate, as that relates to the Applicant's fitness, in the future, to hold a practising certificate.
16. For the same reasons, I am also satisfied this material is relevant if the Board determines to make application to remove the Applicant's name from the Supreme Court Roll.
17. Adopting then the language of Wilcox J in Springfield v Bridgelands, the circumstances in which the additional material was obtained, the subsequent application to withdraw the application for review following the production of it, the relevance of that material to any future application by the Applicant for a practising certificate or future application by the Legal Services Board to remove the Applicant's name from the Roll, amount to a special feature of the case which affords a reason for releasing the Respondent from the undertaking for these two specified purposes.
18. In exercising my discretion, guided by the non-exhaustive list set out in Springfield v Bridgelands, I take the following matters into account. I consider that the information contained in the documents is highly relevant to the identified proceedings, bearing as it does on the question of whether the Applicant is a fit and proper person to hold a practising certificate or remain on the Roll. The Respondent is the regulator with carriage of both proceedings, if they eventuate. Being relevant to the fit and proper person test, it follows the information contained in the documents bears on, or contributes to, achieving justice if those proceedings eventuate. Conversely, if the documents are no longer available in the event these proceedings eventuate, the ends of justice may not be met.
19. It could be some considerable time in the future before the Applicant decides to reapply for a practising certificate. Similarly, it could be some considerable time in the future before the Respondent decides if it will apply to strike the Applicant's name off the roll. The people or entities who produced the documents may no longer be under an obligation to retain the documents, or some of them, by the time the Respondent seeks to obtain them for use in those contingencies. If the Respondent is not released from its undertaking, there is a risk all or some of the documents may have been destroyed or lost. That is a risk, whether one is looking at the likelihood an independent third party will keep business records for the time they are required to by law or whether one is considering the position of a related third party, who has possession of documents which reflect adversely on the conduct of the Applicant or themselves. It is also a risk, in the case of Campus Martius, that there appears to be, at present, no director with capacity to discharge his obligations as director and where there is evidence capable of establishing that the Applicant controls it.
20. I have referred to the documents globally and to their combined effect. As I have made clear earlier in these reasons, the combined effect of the documents is capable of showing the Applicant engaged in wrongdoing of a more serious nature than that known at the time of the Bar Council proceedings in relation to the Applicant's own tax affairs and his conduct in relation to his obligations to account to his trustee in bankruptcy for his income. It is not necessary to itemise them. Suffice to say the documents are all directly related to the issues I have identified and include:
    • (a) business records evidencing fees received by the Applicant's clerk;
    • (b) banking records and tax returns of the Applicant and Campus Martius and others to whom payments traceable to the Applicant's fees were made;
    • (c) transcripts of compulsory examinations; and
    • (d) documents relating to the Applicant's conduct in respect of his tax and bankruptcy affairs in some other way.
21. I note also the absence of any sensitive information other than that directly relating to these matters, which could be classified as personally or commercially sensitive.
22. Finally, I take into account the fact that all documents were properly sought for the purposes of the application for review. It was the Applicant, not the Respondent, who initiated the application for review. There is no suggestion the conduct of the Respondent, in seeking the issue of the summonses to produce documents, acted oppressively or for any improper purpose or ulterior motive.
23. I am satisfied therefore that special circumstances exist and that the discretion to release the Respondent from its undertaking should be exercised in its favour.

[1] [1983] 1 AC 280.

[2] Harman v Secretary of State for the Home Department [1983] 1 AC 280.

[3] Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 74.

[4] [2008] HCA 36; (2008) 235 CLR 125 [96].

[5] [1992] FCA 472; (1992) 110 ALR 685, 693.

[6] A medical practitioner, although, as a consultant paediatrician, with specialist qualifications unrelated to her father's condition.

[7] Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 51(1)(a).

[8] Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 51(2).