Hallett v Robert James Lawyers
[2021] VSC 363
•24 June 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2019 02978
| ARTHUR HALLETT | Appellant |
| v | |
| ROBERT JAMES LAWYERS | First Respondent |
| and | |
| THE VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL | Second Respondent |
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JUDGE: | O’Meara J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18 June 2021 |
DATE OF JUDGMENT: | 24 June 2021 |
CASE MAY BE CITED AS: | Hallett v Robert James Lawyers |
MEDIUM NEUTRAL CITATION: | [2021] VSC 363 |
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ADMINISTRATIVE LAW – Victorian Civil and Administrative Tribunal – Litigant in person – Application struck out – Application for leave to appeal under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) and appeal if leave is granted – Appeal on a question of law – Denial of natural justice – Appeal allowed – Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 71, 75, 148 – Australian Consumer Law and Fair Trading Act 2012 ss 183, 189 – Towie v Victoria [2008] VSC 177 considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | AFL Krohn | Provest Law |
| For the First Respondent | No appearance | |
| For the Second Respondent | No appearance |
HIS HONOUR:
A Background
In early 2017 the appellant was a defendant in a Magistrates’ Court proceeding. On about 31 January 2017, he retained the first respondent to act for him in that proceeding, which was listed for final hearing on 9 February 2017. From the perspective of the appellant, the matter was not ready to proceed.
At the request of the first respondent and commencing on 1 February 2017, the appellant deposited tranches of $2,000 into the first respondent’s trust account until he had deposited a total sum of $10,000.
The opposing litigant did not agree to a proposed adjournment. It seems that the appellant proposed to file and serve an amended defence and counterclaim and, as I have noted, from his perspective the matter was not then ready to proceed.
Ultimately, it seems that the matter of an adjournment needed to be argued before the Magistrates’ Court. In connection with that hearing, the appellant’s legal practitioner, Benjamin Franklin, swore an affidavit dated 8 February 2017. The affidavit deposed to various aspects of the history of the proceeding and the state of preparation of the appellant’s defence. Mr Franklin deposed to the appellant being at that point ‘fatally underprepared … to conduct a trial and properly present his defence at the Hearing on Thursday 9 February 2017’. Mr Franklin deposed to various other matters relevant to the application for adjournment, including the appellant’s then state of health.
In the present proceeding, the appellant deposes that an adjournment of the Magistrates’ Court proceeding was obtained, but only for two weeks, and the appellant was ordered to pay costs. He claims that a costs order might have been avoided if the request for an adjournment had been made ‘in a timely manner’. Nothing presently turns upon that assertion.
The appellant deposes that he later engaged Rigby Cooke Lawyers and then incurred ‘duplicated costs’. He requested that the money which he had deposited with the first respondent be returned. It seems that the first respondent retained the trust moneys and sent a tax invoice for a further sum of $4,168. The appellant deposes to being ‘shocked’ by the dimension of what he describes as being ‘no more than a few days’ work for a two week adjournment and the penalty of a large costs order’.
The appellant deposes that the first respondent later issued proceedings in the Magistrates’ Court to recover the further sum of $4,168, which the appellant describes as being ‘in addition to the $10,000 that had already been paid to them in trust, plus interest and costs’.
The appellant deposes that ‘in response’ he commenced an action in the Victorian Civil and Administrative Tribunal (‘VCAT’) pursuant to the Australian Consumer Law and Fair Trading Act 2012 (Vic) (the ‘ACL & FT Act’). I will refer to that proceeding (proceeding no. C8436/2018) as the ‘first VCAT action’. In that connection, it seems that the appellant placed reliance upon s 189 of the ACL & FT Act, which provides as follows:
(1)This section applies if a supplier, or a person acting on behalf of the supplier—
(a) commences proceedings in a court; and
(b)the proceedings arise wholly or predominantly from a small claim.
(2) The court must dismiss the proceedings if—
(a) the court has not yet commenced to hear the matter; and
(b)the purchaser has applied to VCAT to have the matter heard and determined by VCAT; and
(c)the purchaser has lodged with VCAT—
(i) the whole of the amount sought by the supplier; or
(ii)if any payment has been made to the supplier (including any deposit), the outstanding amount sought; and
(d)VCAT has notified the court of that application to VCAT and lodgement.
(3)If the court dismisses the proceedings under subsection (2), the court must not make an order as to costs in respect of those proceedings.
That section appears in Chapter 7 of the ACL & FT Act, which is entitled ‘Functions of VCAT’, and includes s 183 which is directed to the meaning of ‘small claim’: meaning, relevantly, ‘a consumer and trader dispute’ in relation to a specified ‘claim for payment of money’. Prior to 7 December 2018, that specified sum was ‘not exceeding $10,000 or other prescribed amount’. Sections 184 and 185 of the ACL & FT Act give to VCAT a wide range of powers to deal with and determine such disputes.
The appellant deposes that he deposited with VCAT the amount of $4,349.05, which he describes as being the ‘disputed amount’. The events which I have described seem to have occurred prior to 4 December 2018.
On 4 December 2018, a Deputy President of VCAT ordered as follows:
1.The Principal Registrar is directed to consider whether to reject the Application pursuant to s 71 of the Victorian Civil and Administrative Tribunal Act 1998.
2.If the Principal Registrar rejects the Application, the Principal Registrar should refund to the applicant the $4349.05 which has been paid into the Tribunal’s small claims suspense account.
The reasons given for the making of those orders are reproduced below at [33]. Relevantly, for present purposes, it is evident that the Deputy President considered it to be ‘clear on the material filed by the Applicant that the parties’ dispute is not a “small claim”’.
Sub-section 71(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’) permits the Principal Registrar to ‘reject’ an application that is ‘made by a person not entitled to make it’. It is not apparent that the other sub-paragraphs of sub-s 71(1) could have applied; indeed, it might be debatable whether sub-s 71(1)(a) applied to the circumstances of the appellant such that his application should properly have been wholly rejected by the Tribunal.
In any event, at the hearing of the present application for leave to appeal and appeal if leave is granted I was informed by Counsel for the appellant that on 17 December 2018 the Registrar rejected the appellant’s application in the first VCAT action.
In that regard, the course adopted by VCAT seems to have been something of an inversion of the process envisaged by s 71. In any event, in respect to none of the steps undertaken in the present instance was the appellant given prior notification or afforded any opportunity to be heard.
On 8 February 2019, the appellant made a further application to VCAT (proceeding number C1130/2019). I will refer to that as the ‘second VCAT action’. The appellant deposes that his further application was prepared in order to ‘conform with s 183 of the Act’, presumably meaning that it would comply with what was believed to be the meaning of ‘small claim’.
A copy of that application was provided to the Court in the course of the present hearing, and essentially confirms that to which the appellant deposed. In the application, the appellant stated that the first respondent had ‘overcharged and mishandled the matter resulting in my sustaining an unnecessary cost’. The ‘cost’ referred to by the appellant seems to have been the costs order incurred by him in the original proceeding in the Magistrates’ Court, in the sum of $4,373. The application sought a transfer of the first respondent’s Magistrates’ Court proceeding to VCAT, an order that the first respondent pay the appellant $4,373 and an order that the appellant did not owe the first respondent $4,349.05. In response to the formal question ‘How much is your claim?’, the appellant specified ‘$4,373 + $4,349.05 = $8,722’.
The appellant deposes that his further application was accepted by VCAT and that on the same day he again deposited the sum of $4,349.05 into VCAT’s small claims suspense account.
On 19 February 2019, the VCAT Registry advised the Magistrates’ Court that it had received the funds paid into the small claims trust account and requested that the Magistrates’ Court dismiss the proceeding then before it, presumably pursuant to s 189 of the ACL & FT Act. The Magistrates’ Court confirmed receipt of that advice.
Notwithstanding the above, the appellant deposes that on 20 February 2019 the Magistrates’ Court entered default judgment against him. On the same day, VCAT issued a notice for the appellant to attend a hearing of the second VCAT action on 4 April 2019.
On 27 February 2019, the first respondent wrote to the Registrar of VCAT and described the appellant as ‘forum shopping’ as, it was said, he had ‘also filed material with the Supreme Court of Victoria in relation to the same subject matter’. The letter stated that ‘the issues raised in the VCAT proceeding have already been the subject of determination by the Magistrates’ Court of Victoria’ and that a ‘final hearing was held on 20 February 2019 and orders were made that Mr Hallett pay Robert James Lawyers the claim amount together with interest and costs’.
Counsel for the appellant stated that the first respondent’s letter had not been sent to the appellant at the same time as it was sent to the Registrar of VCAT.[1] In any event, no material was placed before the Court that would substantiate the allegations that –
(a) the appellant had been ‘forum shopping’ in the Supreme Court; or
(b) the appellant had been the subject of judgment and orders made in the Magistrates’ Court on 20 February 2019 following a ‘final hearing’.[2]
[1]I note that, consistently with what I was told by Counsel, the letter, in its terms, does not bear any endorsement suggesting that it was copied to the appellant.
[2]Cf., Orders of Judicial Registrar Clayton made on 24 July 2019 and Orders of Judicial Registrar Keith made on 25 May 2020.
In the course of the present hearing, Counsel for the appellant informed me that an application in respect of the default judgment against the appellant in the Magistrates’ Court was on foot but in abeyance pending the hearing and determination of the present proceeding.
On 18 March 2019, the same Deputy President of VCAT referred to his order made in the first VCAT action on 4 December 2018 and ordered that the second VCAT action be struck out. In that connection, the Deputy President reasoned –
On 19 February 2019 the Applicant issued proceeding C1130/2019, the subject matter of which is essentially the same as that in C8436/2018.
The Applicant’s issuing of proceeding C1130/2019 is an abuse of process.
Finally, on 10 April 2019, the same Deputy President made further orders in the second VCAT action. It seems that the orders were made because it was considered that it would be necessary to deal with the sum of $4,349.05 that had been paid by the appellant into VCAT’s small claims suspense account. The Deputy President had ‘doubt’ as to whether an order by a Member was required to authorise that the Principal Registrar deal with the money. In that connection, the Deputy President ordered as follows –
1.Strictly for the purpose of making this Order, the proceeding is reinstated.
2.The Principal Registrar is directed to pay the sum of $4349.05 held in the Tribunal’s small claims suspense account to the Applicant.
3.As paragraph 2 is the only step to be taken in the proceeding, the proceeding is hereby again struck out as an abuse of process.
In respect to neither of these further events was the appellant given prior notification or afforded an opportunity to be heard.
B The present proceeding
In connection with the sequence of events described above, the appellant seeks leave to appeal on a question of law from the orders of VCAT made on 18 March and 10 April 2019 on the following grounds –
1.The matter before VCAT was a small claim which should have been heard and determined by VCAT.
2.Lulham DP has denied the Appellant natural justice in making orders in chambers affecting the Appellant’s rights, without allowing the Appellant to be heard.
3.The Member has contravened Article 24 of the Victorian Charter of Human Rights in not making the Orders appealed from after a “Fair and public hearing”.
In the course of preparation of the matter for hearing, it was ordered that the application for leave to appeal and, if leave be granted, the appeal, be listed on an estimate of half to one day.[3]
[3]Orders of Judicial Registrar Clayton made on 24 July 2019.
At a directions hearing on 24 July 2019, it was noted that the second respondent had indicated that it would adopt the Hardiman[4] position. The first respondent appeared represented by a solicitor. The Court noted that the first respondent did not propose to participate in the proceeding unless required to do so. Notwithstanding that position, directions were made that provided for the first respondent to file and serve affidavit material and/or submissions should it wish to do so. The same solicitor again attended at a subsequent directions hearing held via Zoom on 14 October 2020, at which it was confirmed that the matter was listed for hearing on 18 June 2021. The first respondent did not file or serve any affidavit material or any submissions.
[4]R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13.
At the hearing on 18 June 2021, as I have noted, Counsel appeared for the appellant. On the day prior to the hearing, a representative of the first respondent informed Court staff that the first respondent may observe the hearing (which was to be conducted by Zoom), but would not participate. In the event, no representative of the first respondent joined the Zoom hearing in any capacity.
In the circumstances described, neither respondent participated in or made submissions at the hearing of the appeal.
CGround 2: natural justice
In the course of the hearing, it was apparent that the appellant’s principal complaint was contained in ground 2, namely that he had been denied natural justice, in that —
(a) he was not given prior notification or afforded any opportunity to be heard before the Tribunal made orders on 18 March 2019 and 10 April 2019;
(b) each order affected his interests, in that his proceeding was thereby wholly struck out; and
(c) if he had been given an opportunity to be heard there would have been ‘something to say’.
As I have noted, the reasons given and the orders made by the Deputy President on 4 December 2018 are contextual to the appellant’s present complaints. In that regard, on that occasion the Deputy President reasoned that —
The Applicant has not paid the filing fee on this proceeding, nor has the Tribunal waived the filing fee. It follows that [sic: at] the date of this Order, this proceeding is irregular.
The Applicant has disclosed to the Tribunal that in proceeding J11377471 issued on 24 May 2018, Robert James Lawyers Pty Ltd has sued the Applicant in the Magistrates’ Court of Victoria at Melbourne.
The Applicant has paid $4349.05 into the Tribunal’s Small Claims Suspense Account (that is, the Account established under s 190 of the Australian Consumer Law and Fair Trading Act 2012). Paying money into that Account is a step which must be taken if a person seeks to have a dispute dealt with by the Tribunal under section 189 of the Australian Consumer Law and Fair Trading Act 2012.
However, section 189 of the Australian Consumer Law and Fair Trading Act 2012 applies where the ‘supplier’ in the dispute between the parties has issued proceedings in a Court, and those proceedings ‘arise wholly or predominantly from a small claim’.
A ‘small claim’ is defined, in section 183(3) of the Australian Consumer Law and Fair Trading Act 2012, as a dispute in relation to a claim for payment of money in an amount not exceeding $10,000.
It is clear on the material filed by the Applicant that the parties’ dispute is not a ‘small claim’, for these reasons:
(a)in the application form filed by the Applicant to commence proceeding C8436/2018 the Applicant alleges on page 8 that the price of the relevant legal advice and services giving rise to the parties’ dispute was $14,168,
(b)whilst on page 9 the Applicant alleges that the quantum of his claim is $10,000, on page 8 he alleges that after paying $10,000 to Robert James Lawyers Pty Ltd that company seeks a further $4394.05, and
(c)on paragraph 5 on page 8 the Applicant seeks two orders which are in the nature of non-monetary orders:
(i) leave to apply for a taxation of costs, and
(ii)a declaration that moneys paid be returned and that no further debt is owed.
That declaration alone shows that the dispute concerns an amount of $14,349.05.
It follows that, independently of the irregularity caused by the Applicant’s omission to pay the filing fee or have that fee waived, the Applicant is not entitled to have the parties’ dispute dealt with by the Tribunal under section 189 of the Australian Consumer Law and Fair Trading Act 2012.
No application for leave to appeal is brought from the orders of the Deputy President made on 4 December 2018. However, at least the following may be observed concerning those orders and the reasons given for making them —
(a) no point of substance was made by the Deputy President concerning the failure of the appellant to pay the filing fee, and it would be surprising if it were in light of the fact that the applicant had deposited with the Tribunal the sum said to be in dispute, namely $4,349.05;
(b) it did not appear to be any part of the reasoning of the Deputy President that the dispute was not one to which the small claims provisions of the ACL & FT Act could apply, but for the sum of the claim made;
(c) in that regard, as at the date of the making of the order on 4 December 2018, the sum of a ‘small claim’ within the meaning of the ACL & FT Act was an amount not exceeding $10,000, although a matter of days later, on 7 December 2018, that amount was increased to $15,000 by s 3 of the Justice Legislation Amendment (Access to Justice) Act 2018;
(d) in any event, the Deputy President apparently reached conclusions in respect to the dimension of the appellant’s claim based upon only the ‘material filed’, and therefore did not ask the appellant – who, after all, was self-represented – about the true dimension of his claim by reference to the differing statements referred to in the reasoning of the Tribunal (at least one of which might suggest that the appellant’s intended claim was within the then limit of $10,000);
(e) in this regard, whilst the effect of order 1 of the Tribunal was to direct the Principal Registrar to consider whether to reject the application pursuant to s 71 of the VCAT Act, it was debatable whether any of the provisions within sub-s 71(1) of the VCAT Act might apply; and
(f) as I have noted, the Principal Registrar apparently proceeded to reject the application on 17 December 2018 – consistently with the reasons given by the Deputy President on 4 December 2018, but some 10 days after s 3 of the Justice Legislation Amendment (Access to Justice) Act had come into force, at which time, on any view, the appellant’s claim was within the newly applicable limit for a ‘small claim’, namely $15,000.
All of the above is no more than to say that whilst no appeal is presently brought from the orders of the Tribunal made on 4 December 2018, that is not to say that the appellant would not have been in a position to ‘say something’ about those events if he had been notified of the course contemplated to be taken prior to the making of orders by the same Deputy President later on 18 March 2019 or 10 April 2019.
Further, as in substance emphasised by Counsel for the appellant in respect to the reasons given and order made by the Deputy President on 18 March 2019 —
(a) it was at least arguable that the subject matter of the first VCAT action and second VCAT action were not ‘essentially the same’ because of the changes effected to the form of the latter;
(b) in any event, there had earlier been no determination of the first VCAT action on the merits and, in the circumstances, it was and is difficult to see how the issuing of the second VCAT action could be said to be an ‘abuse of process’ and the Deputy President gave no reasons explaining precisely why that might be thought to be so; and
(c) the appellant’s complaints of having been denied natural justice are not ‘futile’ in that the Magistrates’ Court judgment should not have been entered and is, in effect, subject to review pending determination of the present application.
Much the same was said concerning the Tribunal’s orders made and reasons given on 10 April 2019.
In respect of all of which Counsel again emphasised that the appellant had been given no prior notification or afforded any opportunity to be heard.
As I have noted, the appellant’s second and principal ground of appeal is directed to the claimed denials of natural justice. In that regard, although there is perhaps room for debate by reference to earlier decisions of the Court of Appeal, later Court of Appeal authority and decisions of this Court support the view that a denial of natural justice can give rise to a question of law for the purposes of s 148 of the VCAT Act.[5]
[5]See the sequence of authorities referred to by Kyrou J (as his Honour then was) in Towie v State of Victoria (2008) 19 VR 640, [44]-[52].
In that regard, s 97 of the VCAT Act provides that the Tribunal ‘must act fairly and according to the substantial merits of the case in all proceedings’ and sub-s 98(1)(a) confirms that the Tribunal is ‘bound by the rules of natural justice’.
In the present instance, it is not clear what provision of the VCAT Act the Tribunal relied upon in striking out the appellant’s second VCAT action on 18 March and 10 April 2019. The Deputy President did not refer to any provision of the VCAT Act in striking out the action. The Deputy President may well have been relying upon sub-s 75(1). In respect of an exercise of power under that sub-section, it is clear that —
(a) a ‘high threshold’ must be met before such a provision can be exercised and it should only be exercised ‘with great care’[6]; and
[6]Ibid, [29].
(b) as stated by Kyrou J (as his Honour then was) in Towie v State of Victoria:
… in the case of a summary dismissal under s 75 of the VCAT Act, the Tribunal is obliged to give prior notice to the complainant of any material matters that the Tribunal proposes to rely upon of its own motion in support of its decision if those matters have not been raised by the respondent to the complainant who has made the application under s 75 of the VCAT Act. The Tribunal’s failure to do so in the circumstances of this case, in my opinion, constitutes a breach of the rules of natural justice.[7]
[7]Ibid, [43].
Similar observations have been made by the Court of Appeal in a cognate context.[8]
[8]Towie v Medical Practitioners Board of Victoria [2008] VSCA 157, [35]-[36].
For these reasons, whether the present orders were made under s 75 of the VCAT Act or not (and I tend to think that they probably were made under s 75), the above principles and approach ought to have been followed. Plainly, in the circumstances that I have described, they were not. The appellant was not provided with any opportunity to be heard in connection with the striking out of his proceeding and there were, as I have described, ‘things’ that could have been ‘said’ concerning at least the following –
(a) the approach taken by the Tribunal in respect of making the contextually relevant orders on 4 December 2018;
(b) the later expansion of the jurisdiction of VCAT in respect of ‘small claims’;
(c) the apparently erroneous basis upon which the Magistrates’ Court had purported to enter default judgment on 20 February 2019; and
(d) the notion that the second VCAT action could be an ‘abuse of process’ in circumstances where there had been no determination of the appellant’s first VCAT action on the merits.
In the last of these respects, it seems that the application pertaining to the appellant’s first VCAT action was simply ‘rejected’ by the Principal Registrar under s 71 of the VCAT Act. There was, as Counsel submitted, no evident determination on the merits. At most, such a course seems akin to having struck the application out, in which circumstances the litigant may be able to start again.[9] In no sense can any issue estoppel or res judicata presently be said to arise.[10] Nor, in any real sense, do any of the factors that might bear about whether or not there might be some other form of abuse of process seem apt.[11]
[9]Bell Corp Victoria Pty Ltd v Stephenson (2003) 20 VAR 280, [54]. See also, Weber v Deakin University (2015) 50 VR 645, [36].
[10]See generally, Derks v R&J Fibreglass Pty Ltd [2009] VSC 601.
[11]Kermani v Westpac Banking Corporation (2012) 36 VR 100, [97] and Angeleska v State of Victoria (2015) 49 VR 131, [155]-[159].
For these reasons, the appellant’s ground 2 must succeed. The appellant was denied natural justice and it is apparent that things could relevantly and forcefully have been ‘said’ by him or on his behalf in respect to the correctness of the decision making process adopted by the Tribunal in the second VCAT action, had he been afforded an opportunity to be heard.
In the circumstances described, in which I have also noted that the first respondent has not moved to defend the course taken by the Tribunal, I am unable to conclude that the denial of natural justice could have had no bearing on the outcome of the dispositions below. Put another way, there does seem to be a realistic possibility that the Tribunal’s decisions could have been different if the appellant had been given an opportunity to be heard.[12]
[12]Stead v State Government Insurance Commission (1986) 161 CLR 141, 145, Norville Nominees Pty Ltd v Strathbogie Shire Council & Ors (2008) 29 VAR 309, [48], Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, [38] & [49].
DGrounds 1 & 3: ‘small claim’ and Charter
In these circumstances, it is unnecessary to decide grounds 1 and 3. In argument, Counsel acknowledged that ground 3 ‘did not add greatly’ to ground 2; it is simply to advance the same argument under the aegis of the Charter of Human Rights and Responsibilities Act 2006 (Vic).
Ground 1 is in a different category. In the amended notice of appeal, the appellant contends that the ‘the matter before VCAT was a small claim which should have been heard and determined by VCAT’. However, that was not the focus of argument at the hearing, perhaps because the question whether or not the claim was a ‘small claim’ did not arise directly in respect to the reasons given and therefore the orders made on 18 March and 10 April 2019.
As argued, Counsel focused upon the contention that it was erroneous for the Tribunal to have concluded that the second VCAT action was an abuse of process. As I have indicated, there is much to be said for that proposition, and there is authority to the effect that an error in an exercise of power under s 75 of the VCAT Act can give rise to an appeal on a question of law from an order of the Tribunal.[13] However, in a case in which the principal complaint concerning the process adopted by and before the Tribunal amounts to a denial of natural justice, it hardly seems appropriate to determine ground 1 in a manner not expressed in the written ground or written submissions filed prior to the hearing when the respondents have elected not to attend. It might be said to be a risk of a kind that inheres in the argument, but it seems more appropriate that I should simply say nothing final concerning ground 1 as re-formulated and expressed in argument.
[13] Djime v Kearnes & Ors [2019] VSC 117, [113]-[128].
E Conclusion
For the reasons given above, it has not been necessary to determine the appellant’s grounds 1 and 3 as his appeal should succeed on ground 2. He has been denied natural justice. His proceeding was determined repeatedly without him being afforded the opportunity to be heard. There are things that relevantly he could have said. He was denied the opportunity to access the wide powers of the Tribunal that may be exercised pursuant to the ACL & FT Act. There should be a grant of leave to appeal[14] and the appeal should be allowed.
[14]Cf., Myers v Medical Practitioners Board of Victoria (2007) 18 VR 48, [28].
I will hear Counsel concerning the form of orders, and costs.
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