Mot (a Pseudonym) v Australian Community Services Organisation
[2021] VSC 595
•17 September 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2021 03153
| MOT (PSEUDONYM DUE TO SUPPRESSION ORDER IN PLACE) | Applicant |
| v | |
| AUSTRALIAN COMMUNITY SERVICES ORGANISATION | First Respondent |
| and | |
| SENIOR PRACTITIONER – OFFICE OF PROFESSIONAL PRACTICE | Second Respondent |
---
JUDGE: | O’Meara J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 September 2021 |
DATE OF JUDGMENT: | 17 September 2021 |
CASE MAY BE CITED AS: | MOT (A Pseudonym) v Australian Community Services Organisation |
MEDIUM NEUTRAL CITATION: | [2021] VSC 595 |
---
VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL — Appeal on a question of law from orders of an interlocutory nature — Underlying trial fixed to commence on 11 October 2021 — Question of expedition — Expedition order not made — Disability Act 2006.
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | L De Ferrari SC with K Chan | Villamanta Disability Rights Legal Service Inc |
| For the First Respondent | S Norton (solicitor) | Stary Norton Halphen |
| For the Second Respondent | JM Davidson |
HIS HONOUR:
On 3 February 2021, a supervised treatment order was made in respect of the applicant pursuant to s 193 of the Disability Act 2006 (the ‘Act’). I gather that the order was made by consent. The applicant dismisses that as having amounted to ‘rubber stamping’.
On 25 May 2021, the applicant applied for revocation of the order pursuant to s 196(1) of the Act.
On 27 July 2021, the Tribunal heard argument from senior counsel for the applicant to the effect that it should create a ‘new file’ pertaining only to the revocation application. The applicant also resisted any joinder of the second respondent to the application.
The arguments were rejected and the Tribunal made orders, including a timetable of orders leading to a hearing of the revocation application on 11 October 2021.
The Tribunal published detailed written reasons dated 10 August 2021. It is evident from those reasons – which are 22 pages in length – that the Tribunal gave careful consideration to the arguments advanced on behalf of the applicant. The Senior Member specified various reasons why it was that she could not accept those arguments.
It is evident from the orders made on 27 July 2021 that the Tribunal has set aside 10 days for the hearing of the revocation application. The timetable provides, among other things, for the parties to file lists of witnesses, an outline of the intended evidence of each witness and ‘any other material’ which that party seeks to rely upon at the final hearing.
By a notice of appeal dated 24 August 2021, brought pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (the ‘VCAT Act’), the applicant applies for leave to appeal in respect of two purported questions of law.
The notice of appeal states two grounds of appeal. The first concerns what is said to have been an error of the Tribunal ‘in law’ in refusing to ‘create a new and separate file’. The second contends that the Tribunal’s exercise of discretion to join the second respondent was ‘vitiated’ by reason of regard being had to ‘irrelevant considerations’.
The present question is whether the applicant’s application for leave to appeal and the appeal if leave is granted should be heard and determined ‘before’ the hearing listed to commence before the Tribunal on 11 October 2021. In substance, the application is for expedition of the hearing of the application for leave to appeal. In connection with that issue, each party has filed and served written submissions.
The applicant seeks expedition and so does the second respondent. In addition, the second respondent raises several complexities which, it says, may well delay the immediacy within which such an expedited hearing might be able to take place.
The first respondent says that expedition may well be desirable ‘in the interests of finality’. On the other hand, it did not concede that the application for leave to appeal is ‘procedurally significant’. Indeed, it submitted that the application for leave to appeal is ‘bereft of merit’.
That said, neither of the respondents presently says anything more specific in respect of the ‘questions of law’ or the two grounds of appeal.
For his part, the applicant says he faces an ‘unfair hearing’ in the Tribunal because there is not a ‘new file’. It is also said that the joining of the second respondent is wrong. The applicant says that the revocation hearing will be ‘procedurally unfair’ and will give rise to a reasonable apprehension of bias.
At various points in her submissions, senior counsel for the applicant contended that various things ‘would’ happen in course of the revocation hearing. To some extent that involved pejorative observations concerning what is said from the Bar table to have happened at the Tribunal in the past and is anticipated to occur during the hearing presently scheduled to commence on 11 October 2021.
The Court has a discretion to grant an expedited hearing in appropriate cases, and is often called upon to do so in circumstances where, for example, there is evidence before the Court concerning the limited life expectancy of a party.
Many issues bear upon the exercise of such a discretion.
One such issue can be whether the merits in the underlying application for leave to appeal are plainly apparent. To some extent, the applicant makes points of that kind in the written submissions, as well as in oral argument advanced in the course of today’s hearing.
Having read the applicant’s written material and heard the arguments of senior counsel, I am far from convinced that the points sought to be advanced are any better than very faintly arguable. In fact, to my mind, the careful and detailed reasons of the Tribunal identify a number of bases for the approach taken below that present as likely correct.
In that regard, I do not accept that it follows as a matter of course that the applicant faces an ‘unfair hearing’ because of the refusal of the Tribunal to establish a ‘new file’ or, for that matter, because the Tribunal has, pursuant to s 60 of the VCAT Act, accepted it to be ‘desirable’ that the second respondent be joined as a party to the revocation application. The orders made on 27 July 2021 show that the revocation application is primarily to be determined on the evidence before the Tribunal.
Further, it does not seem to me to follow from the presence of material on the ‘file’ that the applicant faces an ‘unfair trial’. As I indicated in argument, it is commonly the case that Court files and Court books contain material that might arguably be thought to give rise to prejudice that does not end up in evidence, yet that fact does not routinely give rise to ‘unfair trials’.
I should add that the careful reasons of the Tribunal member – who, it is evident, is presently anticipated to be hearing the revocation application – tend to disclose that the Tribunal has determined to take a fair approach, certainly in respect of anything on the ‘file’.
In any event, it is not evident to me that the applicant has plainly apparent merits in the points proposed. Beyond that, it is perhaps strictly not necessary for me to go.
Another consideration must be the practicalities, whether or not expedition is granted.
If expedition is granted, it now may well be very close to 11 October by the time that the Court comes to determine the application and any appeal. I gather that the Tribunal has already indicated a concern that the presently fixed hearing dates may need to be adjourned by reason of the application for leave to appeal. It follows that the granting of an expedited hearing of the application, in respect to which both the parties have not yet exchanged written submissions and other complexities may arise of the kind highlighted by counsel for the second respondent, has the potential to cause considerable inconvenience for a range of reasons. Those reasons must include the fact that the present supervised treatment order will expire in February 2022. It is not apparent when 10 days would be available for the Tribunal to hear the application between October and February if the presently allocated dates were to be vacated.
On the other hand, if the hearing in the Tribunal on the merits were to proceed, the matters about which the applicant presently complains may assume significance, or may not.
In the event that the applicant’s application for revocation fails, then the points may still be available when considering whether any appeal may then be available on a question of law.
In the event that the applicant’s application for revocation succeeds, of course, the points may have no practical significance at all.
I should add that contrary to the tenor of submissions of the applicant, the present application for leave to appeal has no direct effect upon the ‘liberty of the individual’. That arises in the revocation application in the Tribunal, but not directly here. Indeed, and paradoxically, the practical effect of expedition of the application for leave to appeal may in fact be to extend the claimed infringement upon the applicant’s liberty, not the reverse.
The practicalities seem to me to be in favour of refusing the application for expedition and allowing the application for leave to appeal to take an ordinary course as well as the scheduled application for revocation to proceed in the Tribunal on the merits, as presently timetabled.
An additional consideration is the overall business of the Supreme Court. As I have mentioned, expedition orders are regularly required to be both considered and made, and often in circumstances of mortal urgency. The present does not seem to be one of those cases.
Further, granting expedition in the present case would mean that the Court has less flexibility to accommodate the hearing and determination of other genuinely urgent proceedings of the kind that I have mentioned. That is of particular significance in this time of the pandemic, in which the Court can be required to respond to matters of real urgency arising at short notice.
For these reasons, the application for expedition must be refused. To be clear about it, in my view the present application for leave to appeal and appeal if leave is granted need not be heard and determined prior to the hearing listed to commence in the Tribunal on 11 October 2021.
---
0
0
0