The Vice President confirmed the characterisation hearing and held that the reconstituted panel is bound by each of the formal findings made by the first panel, declining to further reconstitute the panel by replacing the two retained practitioner members. Preliminary factual findings made by a VCAT panel in a staged disciplinary proceeding operate as issue estoppels binding a reconstituted panel, by analogy with the judicial practice on preliminary questions as applied in Chang v Legal Profession Complaints Committee [No 2] [2020] WASCA 208. However, only findings necessary to or forming the essential foundation of the formal conclusions are binding; not every factual statement in the reasons section carries that status. The decision also sounds a note of caution about the three-stage hearing procedure (findings, characterisation, determination) in VCAT disciplinary proceedings, warning that the risks of delay, confusion over boundaries between fact-finding and characterisation, and resource burden should be actively weighed against perceived benefits.
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