MH6 v Mental Health Review Board & Anor

(2009) 25 VR 382; [2009] VSCA 184

Victorian Court of Appeal

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Interrogate

Catchwords

1. Administrative Law
2. › Procedural fairness
3. › Hearing rule
4. › Order of evidence at hearing
5. › Whether requiring applicant to give evidence first in merits review of involuntary treatment order denied procedural fairness
6. › Whether proceedings 'punitive' in character
7. › Mental Health Act 1986 (Vic), ss 8(1), 29, 36, 120(1)
1. Administrative Law
2. › Procedural fairness
3. › Waiver
4. › Whether failure of legal representative to object to procedure constituted waiver of right to procedural fairness
5. › Whether waiver requires knowledge of legal entitlement
6. › Whether hearing rule too fundamental to be waived
1. Administrative Law
2. › Tribunals
3. › Victorian Civil and Administrative Tribunal
4. › Merits review
5. › Procedure
6. › Order of calling witnesses
7. › Whether usual procedure of applicant going first appropriate in involuntary detention cases
8. › Victorian Civil and Administrative Tribunal Act 1998 (Vic)

Quick Take

The usual VCAT procedure of requiring the applicant to present evidence first is not normally appropriate in proceedings involving involuntary treatment orders under the Mental Health Act 1986 (Vic), because such orders affect liberty interests analogous to exposure to a penalty. However, procedural fairness must be assessed in the context of the entirety of the proceedings, including pre-hearing disclosure. Full observance of the hearing rule may be waived by a legal representative's acceptance of the procedure without objection, and courts are entitled to assume legal representatives are aware of their client's rights.