Russell v Heathmont Animal Hospital Pty Ltd
[2018] VSC 53
•23 February 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2016 00771
| CHRISTOPHER RUSSELL | Plaintiff |
| v | |
| HEATHMONT ANIMAL HOSPITAL PTY LTD (ACN 006 408 671) | Defendant |
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JUDGE: | Daly AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | Application dealt with ‘on the papers’ (by consent) |
DATE OF JUDGMENT: | 23 February 2018 |
CASE MAY BE CITED AS: | Russell v Heathmont Animal Hospital Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2018] VSC 53 |
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JUDICIAL REVIEW AND APPEALS – Application for leave to appeal pursuant to s 148 of the Victorian Civil and Administrative Tribunal (VCAT) Act 1998 (Vic) (‘VCAT Act’) – Plaintiff’s dog euthanased while under the care of a third party following diagnosis and treatment by defendant – Plaintiff’s complaint concerned failure of defendant to inform the third party of plaintiff’s instructions for dog to have anti-venom administered immediately – Whether Tribunal erred in law by failing to consider whether the defendant breached s 18 of the Australian Consumer Law (‘s 18 claim’) – Whether s 18 claim had been pressed at Tribunal such that Tribunal Member was obliged to deal with it in her reasons – Plaintiff referred to claims under Australian Consumer Law and equivalent Victorian legislation by checking box in standard form claim document when issuing Tribunal proceeding – Plaintiff’s Tribunal claim otherwise framed as a breach of contract claim –Finding that any error in the Tribunal Member’s reasoning process would not, if corrected, have altered the outcome of the Tribunal proceeding – Bahonko v Moorfields and ors [2011] VSCA 6, applied – Plaintiff failed to establish that any error of law would result in substantial injustice if unreversed – Application for leave dismissed.
PRACTICE AND PROCEDURE – Plaintiff self-represented at Tribunal – Consideration of extent of a Tribunal member’s obligations to assist a self-represented litigant in formulating or litigating their claims – VCAT Act, s 97 – Seachange Management Pty Ltd v Bevnol Constructions and Developments (Domestic Building) Pty Ltd & Ors [2008] VCAT 1479, referred to – Gaycel Pty Ltd v Heski Carpenters Pty Ltd [2017] VSC 450, referred to.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | H R Hassan | Grindal & Patrick (until 22 August 2017) |
| Dr Green, a director of the defendant, in person |
HER HONOUR:
This is an application for leave to appeal from orders made by the Victorian Civil and Administrative Tribunal (‘VCAT’) on 4 February 2016 dismissing an application by the plaintiff, Dr Russell, against the defendant, Heathmont Animal Hospital (‘hospital’) at which his two year old border collie, Elsa, had been treated on 21 January 2015. Dr Russell, a retired school teacher, took Elsa, who was comatose and in acute distress, to the hospital for diagnosis and treatment. Elsa was subsequently transported to the Accident Emergency Centre at Mount Waverley (‘AEC’) by Dr Green, a veterinarian who is a director of the hospital. Elsa did not recover, and was euthanased while under the care of AEC.
As noted above, Dr Russell sought treatment at the hospital for Elsa after she collapsed. Elsa was unresponsive, and Dr Green, a veterinarian employed by the hospital, intubated her and placed her on a ventilator. During the consultation between Dr Russell and Dr Green, Dr Green said he thought Elsa may have been bitten by a snake. Dr Russell wanted anti‑venom administered, which the hospital did not have in its possession. Later that day, Dr Russell telephoned Dr Green, stating that he wanted Elsa to be treated by an emergency clinic in Collingwood (‘Collingwood hospital’). Dr Green told him that he preferred that Elsa be transferred to the AEC, as Dr Green would have to transport her in his car with the hospital’s ventilator. Dr Russell gave evidence at VCAT that he would have preferred to have transported her to Collingwood, and he could have given her mouth to mouth resuscitation during the trip.[1]
[1]I note that Heathmont is a little less than thirty kilometres from Collingwood, compared with approximately fifteen kilometres from Mount Waverley.
Dr Russell’s main complaint against the hospital is that he had told Dr Green that he wanted anti‑venom to be administered to Elsa, but that Dr Green failed to communicate this to Dr Ryan at the AEC. Dr Russell gave evidence that the staff at the Collingwood hospital told him that if he brought Elsa in, they would administer anti-venom immediately.
This proceeding was brought on 2 March 2016, seeking orders that VCAT’s order be set aside, and the matter remitted to VCAT for a further hearing. In his draft Notice of Appeal (prepared while he was self‑represented), Dr Russell identified the following questions of law:
1.Whether I was required to prove that I or Dr Green was in a position to require Dr Ryan to administer anti‑venom, regardless of the precise words used in the referral, where she did not consider it indicated?
2.Whether it was required that Dr Green was in a position to effect the professional judgment of Dr Ryan ‘as to whether anti‑venom ought to be administered’?
3.Whether it was necessary to place ‘great store’ in the precise wording used by Dr Green?
4.Whether it is relevant that the information on the snake bite testing kit is not definitive?
5.Whether the Board’s determination ‘is evidence that tends to favour the respondent’?
The proceeding came before me for directions on 14 April 2016, by which time Dr Russell was represented by solicitors. On that day I made the following orders by consent:
1. The Applicant’s Application fixed for 21 April 2016 is vacated.
2.The Applicant file and serve any further affidavit and any written submissions, including a list of authorities, on which he intends to rely, in respect of the leave to appeal and the substantive appeal by 4pm on 22 April 2016.
3.The Respondent file and serve any further affidavit and any written submission, including a list of authorities, on which they intend to rely by 4pm on 6 May 2016.
4.Pursuant to r 4.14 of the Supreme Court (Miscellaneous Civil Proceeding) Rules 2008, the Plaintiff’s application for leave to appeal be heard and determined by a Trial Judge at the same time as the hearing and determination of the appeal, if leave to appeal is granted.
5.The Application for leave, and if granted, the appeal to be heard on the papers.
6. Costs are reserved.
7. The parties have liberty to apply.
The orders of 14 April 2016 were varied by consent on 21 April 2016 to provide a slightly more extended timetable.
Unfortunately, after I made the orders on 21 April 2016, the file appears to have fallen ‘through the cracks’, in that it was not until late 2017 that the matter was referred to an Associate Judge for determination. Orders were made to that effect by Ginnane J on 2 October 2017.
On 15 April 2016, after he had engaged solicitors, Dr Russell filed an Amended Notice of Appeal, as follows:
1.Did the Tribunal err by failing to determine a claim that had been legitimately raised before the Tribunal, namely that the respondent engaged in misleading or deceptive conduct contrary to s 18 of the Australian Consumer Law?
2.Did the Tribunal err by failing to address a submission that had been seriously advanced before the Tribunal, namely that the respondent had engaged in misleading or deceptive conduct contrary to s 18 of the Australian Consumer Law?
Accordingly, the sole issue before me on the application for leave to appeal is whether VCAT erred in law by failing to consider whether the hospital breached s 18 of the Australian Consumer Law (‘s 18 claim’), rather than the more broad ranging issues identified by Dr Russell in his originating motion.
Section 18 of the Australian Consumer Law provides as follows: ‘A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.’
In his written submissions filed on 13 May 2016, Dr Russell submitted, in summary, as follows:
(a) Dr Russell is a lay person, and as such, his claims before VCAT were not expressed with the clarity that one might expect of a party who is legally represented;
(b) Dr Russell had clearly identified that his claim arose under the Fair Trading Act 1999 (Vic), and the Australian Consumer Law and Fair Trading Act 2012, that he was seeking damages or other orders for misleading or deceptive conduct, false representation or unconscionable conduct, and both his and Dr Green’s submissions used the language of misleading and deceptive conduct in making their submissions to Member Kirmos of VCAT (‘Tribunal Member’);
(c) the Tribunal Member’s reasons do address the issue of unconscionability. However, the s 18 claim is quite distinct from this claim; and
(d) the Tribunal Member’s failure to deal with the s 18 claim created a manifest injustice. In any event, it is clear that a failure of a tribunal member to address an argument clearly articulated by an applicant will amount to jurisdictional error, and also amount to an error of law.
Prior to giving further consideration to the issue of whether the application for leave to appeal should be granted, and/or whether the appeal should be allowed, I will turn briefly to the factual and procedural background giving rise to Dr Russell’s application in this proceeding.
In the VCAT proceeding, Dr Russell claimed compensation from the hospital in the amount of $3,059.50 in respect of the alleged misdiagnosis of Elsa,[2] and $324.55 for the cost of an autopsy performed upon Elsa, along with a declaration that he was not required to pay the hospital’s account for veterinary services. The hospital counterclaimed seeking payment for veterinary services of $1,027.55 plus costs.
[2]Which includes the sum of $1,263.05 said to be owing by him to the hospital.
In his application to the Civil Claims List at VCAT (which made claims against both the hospital and the AEC), Dr Russell indicated on the ‘pro-forma’ form (which had limited options) that he claimed:
Payment of money (including damages). Damages or other orders for misleading and deceptive conduct, false representation or unconscionable conduct.
Dr Russell, under the heading on the form ‘Which Act/s are you making this claim under?’, checked the box ‘Fair Trading Act 1999, Australian Consumer Law andFair Trading Act 2012 and Owners Corporation Act 2006; where claim is for a sum of $500 or more but less than $10,000.’
In a document annexed to the VCAT application form, Dr Russell provided the following details of his claim:[3]
[3]The letters referred to in this document were not in evidence before me, but I assume they are to the effect asserted.
I was advised by Dr Peter Green, Heathmont Animal Hospital, 21 January, 2015, that my dog might have been bitten by a snake. The dog was transferred subsequently to the Animal Emergency Centre, Mount Waverley, where a CSL snake venom detection kit test was performed by Dr Eleanor Ryan. I was then advised that my dog had not been bitten by a snake.
I requested later an explanation concerning why my dog was not treated for snakebite as a result of an inconclusive negative test result. Dr Ryan claimed (letter, 13 March), that she had been advised by Dr Green that he had advised me to bring my dog to an emergency centre to be tested for snakebite and to receive treatment if snakebite was confirmed.
I wrote to the Veterinary Practitioners Board of Victoria (letter, 7 April), asserting that Dr Green had not advised me thus, that he had not recommended any treatment for my dog, and that, regardless, I had given instructions to Heathmont Animal Hospital to transfer my dog to an emergency centre to receive treatment with antivenom for suspected snakebite as soon as possible. The Veterinary Board did not make any negative findings in relation to these matters.
Dr Green’s advice to the Board was not formally inconsistent with my advice to the Board. He did not advise the Board that he transferred my dog to the Animal Emergency Centre for medical reasons, nor did he confirm that he advised me to get my dog tested for snakebite, as Dr Ryan claims (letter, 13 March); but moreover, he did not advise the Board that he advised me to transfer my dog to an emergency centre. Dr Green’s reported advice to Dr Ryan concerning all these matters, however, was substantively different (see my letter, 7 April).
Dr Green advised the Board that I ‘appeared reluctant’ in relation to ‘the potential cost for treatment’ (letter, 9 February); however, he did not advise the Board concerning whether, as a registered veterinary practitioner, he considered it incumbent upon himself to determine my disposition definitively, nor whether he considered it incumbent upon himself, in these circumstances, to advise me that rapid provision of antivenom was the best chance that I had to save my dog’s life.
Dr Green may have been reluctant in relation to the potential cost for treatment. His reported advice to Dr Ryan, in contravention of CSL directives for the use of snake venom detection kits, might also have been motivated by how I continued to appear despite precise instructions from me to provide my dog with antivenom as soon as possible.
Dr Ryan is responsible for her own decision to act on Dr Green’s reported advice without consulting with me concerning why I had authorised the transferral of my dog, on suspicion of snakebite, to an emergency centre where there were stocks of antivenom available.
The CSL snake venom detection kit was misused by Dr Ryan as an alternative to the rapid administration of antivenom in accordance with protocol for suspected snakebite. The Animal Emergency Centre has not explained why a detection kit was used to treat my dog, rather than antivenom. I did not consent to its use under these conditions.
Dr Green and Dr Ryan are culpable for the death of my dog in the absence of evidence that her recovery from suspected snakebite was not possible if she had been treated with antivenom, rather than being euthanased inadvertently due to an advised neurological injury.
I request an order that the debt to Dr Green, $1263.05 inc costs, is not owed, and damages payable for costs incurred as the result of unconscionable conduct by Drs Green and Ryan:
(i) $734.05, Animal Emergency Centre, Mount Waverley;
(ii)$752.40, The University of Melbourne Veterinary Hospital, Werribee; and
(iii)$310.00, Bamganie Environmental Services, Bannockburn.
(The Animal Emergency Centre have agreed to waive the cost of the CSL snake venom detection kit, $324.55, email, 24 July).
The matter originally came on before Deputy President Lulham on 10 September 2015. After the witnesses were sworn in, Dr Russell informed the Deputy President that his claim against the AEC had been withdrawn.
The hearing before the Deputy President had only been set down for one hour, and was conducted quite informally prior to being adjourned to another day, ultimately before another tribunal member. The evidence given is summarised below.
When asked by the Deputy President why he had brought the application, Dr Russell referred to the complaint he had made against the hospital and the AEC to the Veterinary Practitioners Board of Victoria (‘Board’), and Dr Ryan’s response to the Board, being:
Dr Green advised that they did not have anti-venom at their clinic, and that he had suggested to the owner to come to an emergency clinic where a test for snake bite could be performed, and treatment provided if indicated.
Dr Russell said that he called the hospital, and asked that Elsa be transferred to the Collingwood hospital, where they had anti-venom, but Dr Green suggested that she be transferred to the AEC. He agreed, but stated:
When the dog was admitted to [the AEC] she was treated in a supportive way, and diagnostically, but not therapeutically, and it was not clear what was wrong with my dog, what Dr Ryan thought was wrong with my dog, what should be done with my dog at all.
Dr Russell relied upon the report of the pathologist who carried out the autopsy upon Elsa, which said, in effect, that the efficacy of snake venom detection kits in animals has not been proven. In response to the questions of the Deputy President, he confirmed that the nub of his complaint was that he had made it clear to Dr Green that he wanted Elsa to be given anti‑venom, rather than just a test.
Following further discussion, the Deputy President then reminded Dr Russell that he bore the onus of proof in establishing his claim, and Dr Green did not bear the onus to establish that Dr Russell had agreed to a test being carried out before the administration of anti‑venom.
The Deputy President then asked Dr Green to respond to Dr Russell’s claims. Dr Green explained how Elsa presented to the hospital, what treatment was undertaken, and the possible causes of her condition, one of which was snake bite. He agreed that Dr Russell called and wanted Elsa transported to the Collingwood hospital: he could not do that, but he was prepared to take her to the AEC with the hospital’s ventilator.
Dr Green also referred to the Board’s response to Dr Russell’s complaint, including the Board’s reference to the obligations of a veterinary practitioner under the Drugs, Poisons and Controlled Substances Act 1981 (Vic), and the Board’s decision that the conduct of the hospital and the AEC was reasonable. Dr Green went on to say:
So the Veterinary Board has decided that it was reasonable of the AEC not to give anti‑venom, and it was certainly reasonable for me to actually delay in sending her to the AEC, which – on the basis of the fact that we couldn’t have got her there anyway, because the dog was not breathing. So I find it hard to understand Dr Russell’s claim that we were sending her there just to get anti‑venom, which was not the case. It was a case of treating it overnight because the dog needed oxygen, and we couldn’t provide that overnight. And also they could do the venom tests, and if it happened to be, you know, positive, then it would justify giving anti‑venom, even though giving it at that stage was unlikely to make a huge clinical difference to the dog, because the dog was comatose at that stage.
The Deputy President then allowed Dr Russell to question Dr Green. It is clear from the transcript that the key issue in Dr Russell’s complaint was the nature of the instructions he provided to Dr Green, and that the key plank of the hospital’s defence was whether those instructions were binding, or whether a practitioner’s own clinical judgment took precedence over those instructions.
Dr Russell then asked Dr Green questions about his statement in his letter to the Board to the effect that Dr Russell was reluctant to treat Elsa with anti‑venom because of the potential cost of that course of action. Dr Green then told the Deputy President that he gave Dr Russell a ‘ballpark’ estimate of the potential costs he might incur at the AEC, which with the administration of anti‑venom could run into thousands of dollars.
At this point the Deputy President informed the parties that the hour set aside for the hearing had almost expired, and that he wanted to hear from other witnesses. Dr Russell then questioned Dr Ryan of the AEC, who was also questioned by the Deputy President.
Dr Ryan gave evidence, in summary, as follows:
(a) Dr Green stayed at the AEC for approximately half an hour after delivering Elsa there;
(b) her initial consultation took a lot longer than usual, about half an hour to forty-five minutes before Dr Russell agreed to do the snakebite test, because it was difficult to get a “yes or no” answer from him. She told Dr Russell:
Well, look, we at least need to [do] a snake venom detection kit. I can’t just give anti‑venom without having done it as there were no other clinical signs to indicate administering anti‑venom;
(c) in response to a question from the Deputy President as to what she would have done had Dr Green told her that he wanted her to administer anti‑venom to Elsa, she gave the following evidence:
We have to make sure that the anti-venom is indicated in the specific case. So we need to assess the dog clinically, and we also – unless we actually see a dog be bitten by a snake like right in front of us … we don’t know that’s what has happened. We need to do a snake venom detection kit. If there aren’t any other real major indications to say this is exactly what is happening – there are certain things that can happen in a history where a client tells us what has happened that will indicate to us that it is more likely, but snake – snake information is just one of the differentials why the dog was transferred to us in the first place.
When I first spoke to Dr Green, when he first called, which was approximately 6.30, when I first came on to shift, it was one of the things that was a possibility. But because there was a lack of other reasons why this could have happened, we needed to make sure we actually performed the snake venom detection kit at least before I gave the anti-venom. And if I hadn’t – if he would have said, ‘Look, you have to give the anti-venom when she first gets there,’ I would have still been reluctant in my clinical opinion to just give it straight away. And I specifically was saying that to Mr Russell during the initial consultation. I was like, ‘it’s – we have certain options. That’s one of the options that we can do, but I’m reluctant without actually performing the snake venom detection kit.’
(d) she gave evidence that Elsa did not present as a typical snakebite victim;
(e) in response to questions from Dr Russell as to the reliability of the snakebite test, she gave evidence that it was generally reliable; and
(f) when asked by the Deputy President whether there were any situations in which she would administer anti‑venom without testing, she gave evidence as follows:
Yes, if the dog was seen to be bitten by a snake in front of the owner, or the dog came to us, saying that it was a warm day, the dog disappeared from the owner’s sight for a short period of time, it came to us and it collapsed, but then it seemed to get better, and then it came to us getting worse and worse with … paralysis, and, for example, if the urine is dark, which it wasn’t, then that would be a clear indication to us to give it. And apart from that, usually we would perform the snake venom detection kit because we don’t want to be giving anti-venom to a dog that doesn’t need it.
After Dr Ryan gave her evidence, the Deputy President adjourned the further hearing of the application, on account of other matters in the list that day. The matter came back on before Member Kirmos (‘Tribunal Member’) on 8 December 2015, where both Dr Russell and Dr Green made submissions. Dr Russell relied upon his written submissions, which stated, in summary, as follows:
(a) he did not knowingly and wilfully consent to any other treatment of Elsa other than the administration of anti-venom as soon as possible;
(b) he did not know that Dr Green had told Dr Ryan that he had suggested that Elsa be tested for snake bite pending administration of anti-venom, or that Dr Green had failed to advise Dr Ryan of his instructions to transfer Elsa to the AEC to receive treatment with anti-venom as soon as possible;
(c) he stated:[4]
[4]Relevantly, this is the only occasion during the course of the hearing of the VCAT proceeding where Dr Russell used the term ‘misled’.
If I had not been misled and/or if I had been advised that the AEC might not administer anti-venom to my dog, regardless of my instructions, and for whatever reasons, then I would not, on Dr Green’s suggestion, have transferred my dog to the AEC, rather than to [the Collingwood hospital], where I was previously advised that protocol for suspected snakebite was available if transportation could be arranged;
(d) as such, there was a wrongful interference with Elsa at the AEC, and he was denied the right to make a proper and knowledgeable decision to consent to the treatment provided at the AEC;
(e) if it was appropriate to use the snake venom detection kit, and even if there were clinical grounds to euthanase Elsa, ‘Dr Ryan did not have lawful authority to treat my dog without my informed consent’; and
(f) Dr Green did not comment upon, and the Board made no finding upon, the veracity of his claim that he gave instructions to him to administer anti-venom to Elsa as soon as possible, although Dr Green acknowledged this after his staff present at the VCAT hearing on 10 September 2015 told him that this was correct.
In response, Dr Green submitted, in summary, as follows:
(a) it was unfortunate that what is essentially a dispute over a clinical judgment has become personal, in that Dr Russell has accused him of being incompetent and dishonest;
(b) he stated:
Much of Dr Russell’s complaint lies in my alleged failure to inform the AEC correctly of the dog’s condition and their failure to provide snake anti-venom. The veterinary board has already examined this claim and has quoted out in their findings that, even if I had failed to correctly inform the AEC, which I refute, there was a professional expectation that the veterinarian at the AEC would perform their own examination and treat it accordingly and I might just add in there that in this current situation Dr Russell is suggesting that he was - … and they would have just given it antivenin[5] without making their own examination which I would dispute …
[5]Also described by the parties as ‘anti-venom’.
They cannot just take the advice of the referring veterinarian, let alone an unqualified owner. Communication with the owner is aimed at providing options for treatment and seeking permission rather than asking an owner how the vet should treat the dog. Paragraph 4, I did in fact inform the board how I transported the dog to the AEC for medical reasons and discussed this with the coroner. Paragraph 5, my observation that the client appeared reluctant in relation to the potential costs of treatment was not the reason I did not advise him that, quote, the rapid provision of anti-venom was the best chance that I had to save the dog’s life, unquote.
The real reason, as I’ve repeatedly told him, was that, firstly, the dog was not … at that point and I could not see how I would get the dog [to] the AEC; and, secondly, the snakebite was just one possible cause of the dog’s clinical condition, but there are – I stress this – no other clinical or diagnostic evidence to support that diagnosis. Again, the veterinarian board has found that this was an entirely reasonable clinical judgment. Paragraph[2] 6 to 8, I advised Dr Ryan had nothing to do with the … real or perceived concerns about the cost of treatment. Once the client has been warned about the potential costs, which Dr Russell was, then it [was] up to the AEC to justify their use of the venom detection kit. But contrary to the client’s claims, the use of the kit was not in contravention of the CSL directives.
(c) there was no supporting clinical evidence apart from coma which indicated that Elsa had been bitten by a snake;
(d) the Board ruled that the decision not to administer anti‑venom straight away was entirely reasonable; and
(e) there was no evidence that either Dr Ryan or himself, by failing to administer anti‑venom, was culpable for the death of Elsa, who was euthanased with Dr Russell’s consent.
After Dr Green made his submissions, further discussion ensued between Dr Russell, Dr Green, and the Tribunal Member. While some of this discussion was somewhat repetitive and argumentative, relevantly, the following submissions were made:
(a) Dr Russell stated that he was not claiming that Dr Green was negligent in his treatment of Elsa, but rather his case was that he gave instructions for Elsa to be treated with anti-venom as soon as possible. He stated:
I didn’t agree to enter a contract whereby my dog was treated in any other way than for anti-venom to be administered as soon as possible
and further:
I’m not resting my case on any allegations of negligence. I’m resting my case and my case entirely consists in – that it was unlawful to transport my dog and not inform the AEC that I had advised Heathmont Animal Hospital that I wanted the dog to be treated with anti-venom as soon as possible. There was a wrongful interference with my property at the AEC as a result of the failure of Dr Green to advise the emergency clinic that I wanted the dog treated with anti-venom because Dr Green thought it possible she may have been bitten by a snake.
(b) Dr Green continued to maintain that the question of whether to administer anti-venom was a matter of clinical judgment on his part and on the part of Dr Ryan, which has been vindicated by the Board;
(c) at one stage Dr Russell said:
Because the issue is whether Dr Ryan had lawful authority to treat my dog without my informed consent and I say she didn’t.
to which Dr Green responded:
Well, then, why am I here and not her?
(d) in response to a question from the Tribunal Member, Dr Russell confirmed that he had a two hour conversation with Dr Ryan, following which there was the following exchange:
MS KIRMOS: Okay. So Dr Ryan had no lawful authority to treat your dog, I think you said, other than by administering antivenin immediately. How wasn’t that made clear during that one and a-half [hour] interview? I’m just a little bit confused really …
DR RUSSELL: I didn’t know. I did not know what was wrong with the dog and I was not being told by Dr Ryan what she thought was wrong with my dog. For those (sic) two hour period and (sic) she discussed with me different scenarios that could have – that would be the cause of it. I didn’t know. As I said, I told her I didn’t think it was snakebite myself and she was not telling me what it could be. So what could I do? What could I say? I – she wasn’t recommending, she was saying there’s options and, eventually, she came to me and she said, ‘We believe that she’s had a neurological incident, that is, a stroke,’ and at that time I thought, ‘Well, look, this is what I … said all along. She’s suffering from heat stress and that she’s had a stroke of some sort and that’s the end of her.’
And under no – with that advice, I said, ‘Well, yes. There’s no hope of a recovery, so we’ll have euthanise (sic) her.’ So that’s what happened, but the reason why it went on for two hours is because Dr Ryan never said there was anything wrong with the dog that she knew that recommend any specific treatment or any specific action until about midnight when she said she – it was a neurological incident and she was brain dead. So that’s why it went on for two hours.
(e) following a further question from Dr Green to the effect that ‘Why are we here?’, Dr Russell stated as follows:
Because I gave instructions on your advice to me that the dog may have been bitten by a snake and you suspected snakebite and the protocol for snakebite is rapid administration of anti-venom. And, in any event, they were the conditions under which I agreed to transfer her. Now, if I go there and – and you’re not administering anti-venom and you’re talking to me – well – and Dr Ryan says, ‘Well, it could be a tick. It could be something else. I’m not sure that it’s heat stress and I wasn’t – I don’t know what to do, and then you say – you give me all these options for treatment. Who am I to say, ‘I will have that option.’ No. I need – I need advice and you gave me the advice. You said, ‘Chris, you’re wrong. It’s not heat stress. She may have been bitten by a snake.’
(f) and later, he stated:
I am not saying that they should have or that they were required to treat my dog with anti-venom, but they were required to fulfil the terms of the contract that I entered into with them and that was I want you to transfer the dog to give it anti-venom as soon as possible. Now, if you say to me, ‘Well, you can’t dictate to us how we administer anti-venom,’ I say, ‘That’s fine. Please tell me what the situation is.’ I understand that, of course, but we’re talking about my property, a valuable working sheepdog that I had spent a lot of time training. I can decide what I want done with that animal and what I wanted was anti-venom.
Now, I can’t force you to give anti-venom to the animal. You might not think the diagnosis … but you have to tell me. You have to tell me. You can’t spend two hours telling me it might be a tick or it might be this, it might be that, leaving me to think and hope that maybe some other thought she may be saved somehow and then, after two hours, I’m told, ‘No. It’s a neurological incident.’ Well, if it’s a neurological incident and that’s the advice, I will have to euthanise [sic] the animal. But, if it’s possible that it was snakebite, well, I – there’s a chance. … Protocol for snakebites – suspected snakebite, just rapid anti-venom and … So they are my instructions. And, if you want to dispute with me about anything else, clinically I’m not able or it’s not appropriate for me to do that. I’m just talking about wrongful interference with my property after it was transferred to the Animal Emergency Centre when you failed to advise Dr Ryan that I – my advice was – my request – you had told me that it wasn’t heat stress, it was possibly snakebite. I said, ‘Please. Anti-venom.’; and
(g) Dr Green submitted as follows:
So there has got to be some clinical, you know, justification for giving – you know, giving treatment. There is a – like, there is the question of cost involved and, unfortunately, that is one that we have to deal with … and I think the AEC is sometimes wary. They don’t want to actually go into spending thousands and thousands of dollars because … people make decisions when they’re emotionally, you know, upset … can’t pay. The fact that it’s now nearly 12 months later and Dr Russell still hasn’t paid me would perhaps give some credence to that. I don’t know.
So, yes. Look, it was just one possibility and I must say that I’m not aware that it was Dr Russell’s request to – for me to inform them that they had to give anti-venom. I think I did – might have mentioned it in … to, you know, how to treat it as snakebite, but I didn’t stress that because, again, it’s not – there’s no legal obligation for them to do that. You know, like their legal obligations is to make a diagnosis and treatment accordingly. So I’m – have to leave it up to you to make that decision. Like, if it’s a legal precedent, …
The Tribunal Member dismissed Dr Russell’s claim by orders made on 4 February 2016, and provided written reasons (‘reasons’). It is apparent from the reasons that the Tribunal Member relied upon the evidence given by Dr Russell, Dr Green, and Dr Ryan at the hearing before the Deputy President on 10 September 2015. She upheld the hospital’s counterclaim against Dr Russell, and ordered that he pay the hospital $1,027.55 in respect of unpaid treatment fees.
The Tribunal Member made the following observations in her reasons concerning Dr Russell’s evidence and submissions:
Dr Russell said he had given consent for Dr Green to tell Dr Ryan to administer anti‑venom whether the test was positive or negative, but he had not consented to any other instructions to be conveyed to Dr Ryan. Dr Green had, in his referral, not conveyed Dr Russell’s wishes accurately in this regard. There was no question that he was happy to pay the estimated cost of $6,000 for anti‑venom. Instead, Dr Green stated to Dr Ryan that anti‑venom treatment be administered if indicated, which were not Dr Russell’s instructions to Dr Green. Dr Russell presented the information provided by the manufacturer of the snakebite testing kit, which stated that anti‑venom should be given regardless of outcome as, although it was accurate for humans, it was not accurate for dogs. Dr Green had breached the contract by failing to accurately communicate Dr Russell’s instructions and that this was a legal argument. Dr Green’s actions were unlawful.
The Tribunal Member summarised the evidence given by Dr Ryan of the AEC as follows:
Dr Ryan took a medical history and consent to treat Elsa from Dr Russell. She said that the consultation took two and a half hours and she said it was hard to get a yes/no answer from Dr Russell. She gave him all possible diagnoses and options. Dr Russell agreed that he consented to the snakebite test being administered. Dr Ryan stated that it was her judgment as to whether an anti‑venom ought to be administered. The test was negative for snakebite. In the absence of any other clinical signs or the owner having seen Elsa bitten, the test could not be relied upon and her decision not to administer the anti‑venom was correct. It would not have made any difference to the outcome. It was her obligation under the Drugs Poisons and Controlled Substances Regulations 2006 not to simply act on the owner’s instructions, but to determine the proper course of treatment. Elsa was later euthanazed.
The Tribunal Member’s reasons also refer to the outcome of a complaint lodged by Dr Russell with the Board. The Tribunal Member noted that the Board had found no reason to continue action against either Dr Green or Dr Ryan, as neither were found to be negligent or deficient in the performance of their work. Further, the autopsy was inconclusive as to the cause of Elsa’s death. The Tribunal Member stated as follows:
The Tribunal does not consider the information on the snakebite testing kit sheet to be definitive. The Tribunal is not persuaded that in his diagnosis, treatment or in his communication with AEC, Dr Green was incompetent or that his conduct was unconscionable. The autopsy has been inconclusive and there is no evidence that Dr Green’s actions and possible diagnoses were incorrect or unreasonable. The Tribunal is not satisfied on the evidence that Dr Ryan was a subcontractor of Dr Green’s or that he was in any position to affect her professional judgment as to whether anti‑venom ought to be administered.
Regulation 13 of the Drugs Poisons and Controlled Substances Regulations 2006 provides that a veterinary practitioner must not administer, prescribe, sell or supply a drug of dependence, Schedule 8 poison or Schedule 4 poison unless that drug or poison is for the treatment of an animal under his or her care; and he or she has taken all reasonable steps to ensure a therapeutic need exists for that drug or poison. It provides a sanction to be otherwise imposed.
Insofar as the scientific papers tendered to the Tribunal, without the guidance of an expert witness, the Tribunal is not in a position to assess them in any meaningful way, or to determine whether they are authoritative. Dr Russell has not proven that either he or Dr Green was in a position to require Dr Ryan to administer anti‑venom, regardless of the precise words used in the referral, where she did not consider it indicated. As to Dr Russell’s legal argument, the Tribunal considers that the only contract entered into with the respondent was for a veterinarian to treat Elsa in the manner he or she considered appropriate. While Dr Russell places great store by the precise wording used by Dr Green, the Tribunal does not. Dr Green’s communication with Dr Ryan was not seminal to her decision not to administer the anti‑venom, but rather the Tribunal considers that she based her decision on the very long consultation with Dr Russell and on her own professional expertise. The vets’ treatment was investigated by the Board and determined acceptable. While the Tribunal is not bound to accept the Board’s determination, it is evidence that tends to favour the respondent. Dr Russell has not discharged the onus of proving his claim. The Tribunal accordingly dismisses Dr Russell’s application.
As noted above, Dr Russell’s complaint in this proceeding is that the Tribunal Member failed to adequately consider, or consider at all, the s 18 claim. The written submissions filed on behalf of Dr Russell refer to a number of authorities in support of his contention that the Tribunal Member erred in failing to consider the s 18 claim, as follows (including citations):
Assuming leave is granted, it is clear that the failure of a Tribunal to address an argument clearly articulated by an applicant will amount to a jurisdictional error, and will also constitute an error of law.[6]
In the present case the Tribunal was clearly on notice that the s 18 Claim had been raised. That claim ought to have been dealt with consistent with the Tribunal’s statutory duty under ss 97 and 98(1)(d) of the VCAT Act: to perform the task of resolving fairly the issues that have been presented by the parties.[7]
That was especially the case where the parties below were unrepresented because the VCAT is said to have a ‘special duty’ to litigants in person.[8]
The Appellant also submits that the Tribunal’s total failure to address the s 18 Claim in its reasons (being a claim which the Appellant submits had been seriously advanced before the Tribunal) amounted to an error of law for the purposes of an appeal under s 148 of the VCAT Act.[9]
The vitiating error arises because:
a.the Tribunal failed to give reasons for dismissing the s 18 Claim; or alternatively;
b.the reasons omitted findings on the material questions of fact in respect of the s 18 Claim.
[6]Htun v Minister for Immigration and Multicultural Affairs (2001) 195 ALR 244; NABE v Minister for Immigration and Multicultural Affairs (No 2) [2004] FCAFC 263. In the context of judicial review, that failure may constitute jurisdictional error: Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 136 ALD 547 at [38].
[7]The Gombac Group Pty Ltd v Vero Insurance Ltd & Ors [2005] VSC 442; (2005) 23 VAR 460 at [59] per Osborn J.
[8]See for example: Seachange Management Pty Ltd v Bevnol Constructions and Developments Pty Ltd [2008] VCAT 1479 at [35] and [59] per Judge Ross AP (as he then was).
[9]XYZ v State Trustees Ltd [2006] VSC 444; (2006) 25 VAR 402 at [42] per Cavanough J.
Dr Russell also submitted that the failure of the Tribunal Member to address the s 18 claim amounted to an error of law which caused a substantial injustice, such that the applicable test for granting leave to appeal was easily satisfied.[10]
[10]See Secretary to the Department of Premier and Cabinet v Hulls [1993] 3 VR 331; Myers v Medical Practitioners Board of Victoria (2007) 18 VR 48.
Dr Green, on behalf of the hospital, made submissions by way of an affidavit sworn on 23 May 2016. He deposed in response to Dr Green’s submissions, in summary, as follows:
(a) it is not clear from Dr Russell’s affidavit and submissions filed in this proceeding who Dr Green was said to have misled: was it Dr Russell or Dr Ryan?
(b) in his submission to the Board, Dr Green stated that he had recommended to Dr Russell that Elsa be transported to the AEC for ongoing care, where it could do a venom detection test and treat Elsa with anti‑venom if appropriate. However, the main reason for transporting Elsa to the AEC was because she needed supplemental oxygen to survive, and the hospital could not provide that overnight;
(c) Dr Russell’s recollection is untrustworthy, as he insisted under oath that he was initially seen at the hospital by an unregistered veterinarian, even when presented with photographic evidence to the contrary;
(d) the relevant legislation and regulations provide that no veterinarian can administer a drug to an animal solely on the advice of an owner or another veterinarian without independently establishing a therapeutic need to do so;
(e) in relation to Dr Russell’s claims that Dr Green had misled him, he repeatedly told Dr Russell that snake bite was one possibility amongst many, but the AEC could test for snake bite and treat if they thought appropriate. However, the primary reason for transporting Elsa to the AEC was because she needed overnight oxygen therapy to survive;
(f) Dr Russell’s impression that the Collingwood hospital was prepared to give anti‑venom immediately has not been confirmed, and given the legal responsibilities of veterinarians referred to above, is unlikely;
(g) Dr Green stated:
Dr Russell arrived at the AEC before me and could have expressed his wishes to them directly. If Dr Russell had not been there I could understand that there may have been an obligation to tell them what his wishes were, even if they were not bound to follow them, but in fact he had signed the admittance forms by the time I arrived and the dog then became the patient of the AEC. The treatment of the dog at that point then became a matter between the AEC and Dr Russell. I no longer had any legal obligation to either Dr Russell or his dog;
(h) there was no contract between Dr Russell and the hospital to administer anti‑venom, as the hospital did not stock anti‑venom; and
(i) given the legal obligations of veterinarians in relation to the administration of drugs, it was unreasonable for Dr Russell to allege that Dr Green deliberately misled him into thinking that Elsa would immediately be given anti‑venom.
In relation to the question of the Tribunal Member’s alleged failure to consider the s 18 claim, Dr Green deposed as follows:
Dr Russell’s submission states that the s 18 claim ‘appeared to be a central issue for determination in the proceeding.’ If this is the case, it certainly wasn’t clear during the two VCAT hearings. ‘Misleading’ was but just one of a number of colourful epithets that Dr Russell accused me of including ‘disingenuous’, ‘nefarious’, ‘false’, ‘full of guile’, ‘full of humbug’, ‘subterfuge and unconscionable conduct.’ In the details of the VCAT claim, he does mention my alleged failure to inform the AEC of his instructions but he also mentions a number of other things which insinuated negligence on my part. The Veterinary Board had already considered these claims and had exonerated me and the AEC.
Dr Russell’s submission also states that ‘the s 18 claim was expressly articulated and developed’ in the VCAT hearing, however, there is no supporting evidence to show how it was developed. There is no evidence that I implied or stated that I would instruct the AEC to administer anti‑venom, nor is there any argument to suggest it was reasonable for him to expect me to act on his instructions concerning the administration of a restricted drug.
In point 14 of Dr Russell’s submission, it is stated that for leave to appeal to be granted, ‘the applicant must show that there is a real or significant argument to be put on the question of law’ and that ‘it may have to be shown that to allow the error to go uncorrected would impose substantial injustice.’ I have argued that given there was no legal obligation for me to tell the AEC to give anti‑venom, so there is no significant question of law involved and certainly no injustice done even if there was an error that went uncorrected.
If this case went back to VCAT, the result would have to be the same because of the legal obligations of the veterinarians involved. If the result was overturned, I maintain that a significant injustice would be done to both myself and especially my staff, who all acted in good faith, went beyond the call of duty, and had to put up with Dr Russell’s threatening behaviour on the night and in subsequent email correspondence.
Accordingly, the issues on this appeal are as follows:
(a) did Dr Russell make and/or press the s 18 claim at the VCAT proceeding such that the Tribunal Member was obliged to deal with it in making her decision?;
(b) if yes to (a) above, did the Tribunal Member deal with the s 18 claim?;
(c) if no to (b) above, did any failure on the Tribunal Member’s part amount to a vitiating error of law?;
(d) if yes to (c) above, would that error of law have likely have affected the outcome of the VCAT proceeding, such as to warrant the granting of leave to appeal and allowing the appeal?
One of the difficulties facing parties, and indeed judicial officers, at VCAT is that, given it is not a court of pleadings, and many cases involve unrepresented parties, it is not entirely clear as to the legal basis upon which parties seek to prosecute their claims. This is an example of such a case. Dr Russell was insistent that his claim against the hospital was not made in negligence. Rather, he tended to use the language of contract, in that he contended that there was an agreement between him and Dr Green that Dr Green would faithfully convey his instructions to the AEC. At no time during the course of the hearing did he make any reference to the Australian Consumer Law or its Victorian equivalent.
The failure of Dr Russell to expressly pursue the s 18 claim did not preclude the Tribunal Member from making a finding in favour of Dr Russell in relation to the s 18 claim, and is of itself not fatal to his application for leave to appeal. After all, 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.
This provision has been interpreted as providing that:
(a) VCAT is obliged to accord parties procedural fairness; and
(b) more relevantly to the current case, VCAT must decide matters on their ‘real and substantial merits’, not allow otherwise meritorious claims to be derailed by technical deficiencies in a party’s case, and must ensure that ‘substance prevails’ over form.[11]
[11]See Pizer’s Annotated VCAT Act (6th Ed) [VCAT 97.40] and the authorities referred to therein.
Applying these principles to the current case, Dr Russell ought not have been precluded from relying upon his s 18 claim by reason of him not referring expressly to s 18 of the Australian Consumer Law in either his evidence or submissions. Further, the authorities recognise that self‑represented litigants may require particular assistance to properly formulate or litigate their claims. In Seachange Management Pty Ltd v Bevnol Constructions & Developments (Domestic Building) Pty Ltd & Ors,[12] Judge Ross AP stated that the assistance provided by a VCAT member may include, among other things:
(a)identifying the issues that are central to the determination of the proceeding;
(b)drawing a party’s attention to the relevant legislative provisions and key decision(s) on the issue being determined; and
(c)asking a party to illicit [sic] information in relation to the issues which are central to the determination of the particular proceeding.
[12][2008] VCAT 1479, [5].
While both the Deputy President and the Tribunal Member took interventionist roles during the course of the hearing, neither expressly referred to or re‑framed Dr Russell’s case as a misleading and deceptive conduct case.
However, it is difficult to criticise either the Deputy President or the Tribunal Member for failing to address this issue, given Dr Russell’s own explanation as to what his case was about, which was framed in terms of what he did agree or not agree should be done in respect to Elsa’s treatment, and what he did or did not ‘knowingly and willingly’ consent to. Further, there are some limits upon a VCAT member’s obligations to define or reframe the issues in a proceeding, as noted by Kennedy J in Gaycel Pty Ltd v Heski Carpenters Pty Ltd:[13]
[o]n appeal to this Court must recognise the forensic realities of the way in which the case was put to the Tribunal. It is these realities to which a Tribunal must respond in its reasons. [citations omitted]
[13][2017] VSC 450, [39].
It is apparent from the transcript of the first day of hearing before the Deputy President that the Deputy President was actively seeking to engage with Dr Russell in order to comprehend the manner in which Dr Russell put his case. He told Dr Russell that he bore the onus of proof to prove every element of his claim[14] and that what Dr Russell needed to do was to establish that in fact the agreement between him and the hospital was that he required that anti-venom be administered, regardless of whether there was a positive or negative snakebite test. Dr Russell indicated he understood this. One might have expected if the s 18 claim was advanced by Dr Russell, the Deputy President would have, given the active role he played that day, to assist Dr Russell by informing him of the relevant legislation and what he needed to prove to establish the necessary elements of the s 18 claim. He did not do so, but I consider that is because of the manner in which Dr Russell explained his case and gave his evidence, rather than because of any neglect on his part. I am reinforced in this view by the absence of any reference to such a claim by the Tribunal Member in the course of her reasons, who clearly had access to the transcript of the first day of hearing.
[14]T 10.
Despite the reference in the claim documents Dr Russell submitted at VCAT to claims under the Australian Consumer Law and its Victorian equivalent, which is understandable given the limited options on the proforma VCAT claim form, Dr Russell’s primary allegation against the hospital was that Dr Green had breached his contract with Dr Russell by failing to instruct Dr Ryan to administer anti‑venom to Elsa, without any qualification. It was not alleged that Dr Green told Dr Russell that he would do so, and that he failed to do so.
While in his written submissions handed up to the Tribunal Member on the second day of hearing,[15] Dr Russell referred to being misled by Dr Green, at no other time during the course of either hearing did he refer to having been misled by Dr Green. Instead, his evidence and submissions were confined to the question of what was agreed between him and Dr Green, and what he consented to with respect to Elsa’s treatment. There was some suggestion of ‘reliance’ in his evidence to the effect that, if he had been told that it was not a foregone conclusion that Elsa would have been administered anti-venom at the AEC, he would have transported her to the Collingwood hospital, administering mouth to mouth resuscitation along the way.
[15]See the extract at paragraph 28(c) above.
However, reviewing the transcript of the hearing as a whole, along with the written submissions filed by Dr Russell at the proceeding, notwithstanding that Dr Russell checked the relevant box on the pro‑forma VCAT claim form when issuing the proceeding at VCAT, the s 18 claim was taken no further before VCAT. Dr Russell’s claim was put merely as a breach of contract claim, and, arguably, notwithstanding his protestations to the contrary, as a negligence claim. That much is also evident from the original questions of law, grounds of appeal, and affidavit in support in this proceeding. The original grounds of appeal seem to refer to Dr Green having misled Dr Ryan, not Dr Russell. While Dr Russell deposed in his affidavit sworn in this proceeding on 7 March 2016 that at the time he entered into the contract with AEC he had not known that Dr Green had not informed Dr Ryan of his instructions, read as a whole, the allegations against Dr Green still refer to him having misled Dr Ryan.
Accordingly, my answers to the questions posed in paragraphs 39(a) to (d) above are:
(a) no;
(b) to (d): not applicable.
However, even if I am wrong about my answer to 39(a) above, in my view, even if it were arguable that the Tribunal Member erred in failing to expressly address the s 18 claim in her reasons, which I agree, of itself, would arguably be an error of law, I would dismiss the application for leave to appeal on the grounds that any deficiencies in the Tribunal Member‘s reasoning process would not, if corrected, had altered the outcome of the VCAT proceeding. In particular, the evidence before the Tribunal Member, was to the effect that:
(a) Dr Russell told Dr Green that he wanted Elsa to be administered anti‑venom;
(b) Dr Green told Dr Ryan to administer anti-venom if indicated. It is not clear whether he told Dr Ryan this before or after he arrived at the AEC with Elsa;
(c) Dr Russell arrived at the AEC prior to Dr Green, and subsequently had a two hour consultation with Dr Ryan; and
(d) it was Dr Ryan’s clinical decision not to administer anti‑venom to Elsa. She made it emphatically clear that even if Dr Green had told her he wanted her to administer anti-venom straight away, she would have been reluctant to do so in the absence of a positive snake bite test or other indications that Elsa had been bitten by a snake.
Dr Russell’s case at VCAT, even if it was accepted that Dr Green made any representation of the nature outlined above, must have failed on the question of causation. Dr Ryan’s evidence was unequivocal. She administered the snake bite test, which was negative, and in absence of any other clinical signs of snake bite, determined not to administer anti‑venom. She was clearly cognisant of her professional obligations with respect to the administration of drugs, and was adamant that it was her judgment as to whether anti‑venom ought to have been administered, not Dr Russell’s or Dr Green’s instructions. Accordingly, even if Dr Green had followed Dr Russell’s instructions to the letter, that would have had no impact on Dr Ryan’s independent professional judgment.
Dr Russell’s evidence was to the effect that if he had known that Elsa would not have been administered anti-venom, then he would have transferred her to the Collingwood hospital, giving her mouth to mouth resuscitation during the journey, noting that Dr Green was only prepared to take Elsa to the AEC at Mount Waverley with the hospital’s ventilator. It is apparent from Dr Green’s evidence that without mechanical ventilation, Elsa would not have survived the trip. Notwithstanding the inherent implausibility of Dr Russell’s evidence regarding the transportation of Elsa to the Collingwood hospital, he failed to adduce any independent evidence in support of his contention that veterinarians at the Collingwood hospital would have administered anti-venom solely on the basis of Dr Russell’s instructions. Given the doubt cast upon that assertion by the evidence of both Dr Green and Dr Ryan concerning the professional obligations imposed on veterinarians by the relevant legislation, and the burden of proof imposed upon Dr Russell to make good his claims, the absence of any corroborative and independent evidence is significant. Further, given the inconclusive findings of the autopsy, and the evidence concerning the absence of any other clinical signs of snake bite, it is difficult to see how any misrepresentation on the part of Dr Green affected the ultimate course of events, being the decision of Dr Russell to instruct Dr Ryan to euthanase Elsa, or the ultimate outcome of the VCAT proceeding.
The authorities provide that, generally, an error of law on the part of a decision‑maker will result in the quashing of a decision. In Bahonko v Moorfields and ors (‘Bahonko’),[16] the Court of Appeal stated as follows:
The authorities are clear that, once a breach of natural justice is proved, a court should refuse relief only when it is confident that the breach of natural justice could not have made a difference, and that it is no easy task for a court to satisfy itself that what appears on its face to have been a denial of natural justice could not have a bearing on the outcome.[17] In effect, the onus is on the respondents, therefore, to demonstrate that whatever the appellant might have wished to submit or adduce in evidence to oppose the reference to VCAT, it would ‘inevitably result in the making of the same order as that made by the primary judge at the first trial’.[18] Such is the stringency of the test that there are really only two situations in which relief is likely to be refused. As Redlich JA explained in Ucar:
‘[Relief] will be refused if upon analysis of the basis for the decision there is an incontrovertible factor point of law which provides a discrete basis for the decision which cannot be affected by procedural unfairness. It will then be concluded that the applicant could not possibly have obtained a different outcome. Second, even where the subject of the procedural unfairness touched upon an issue in dispute that was material to the decision, relief may be refused if the respondent can demonstrate that it would be futile to hold a further trial because the result would inevitably be the same.’
[16][2011] VSCA 6.
[17]Stead v State Government Insurance Commission (1976) 161 CLR 141, 145; Re Refugee Tribunal; Ex parte AALA (2000) 204 CLR 32, 122 [104] (McHugh J); Mehmet Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181, [24] and [85]-[90] (Redlich JA).
[18]Mehmet Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181, [24].
The above statements arguably impose a more stringent test than that imposed by s 148(1) of the VCAT Act, as elaborated upon by the test established by the Court of Appeal in Secretary to Department of Premier and Cabinet v Hulls.[19] In Bahonko, and the authorities upon which the Court of Appeal relied in that decision, the obligation is upon a respondent to establish that any remitted hearing would ‘inevitably result in the making of the same order as that made by the primary judge at the first trial’.[20] Under s 148(1), the applicant (here, Dr Russell) must establish that there is a ‘real or significant argument to be put that error exists’, and that there would be substantial injustice in leaving the order unreversed. Of course, if any error would not have made a difference to the outcome of VCAT’s decision, no injustice would result, and therefore no grant of leave is warranted.[21]
[19][1999] 3 VR 331, [19].
[20]Ibid.
[21]See also Forster v Legal Services Board (2013) 40 VR 587, [137]; Aston (Aust) Properties Pty Ltd v Commissioner of State Revenue [2012] VSC 518, [7].
Accordingly, I will dismiss the application for leave to appeal on the basis that Dr Russell has not established an error of law was made by the Tribunal Member which arguably materially affected the result, such that an injustice would result if the error went uncorrected. However, if I am wrong about this, I would have granted leave, but would dismiss the appeal, on the basis that I am satisfied that, even if there were any error of law, the outcome at VCAT would have been no different had the error not been made.
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