VCAT referral proceedings conducted under pt 8 of the Health Practitioner Regulation National Law
Where respondent claimed direction to file evidence and statement of facts would infringe penalty privilege
Quick Take
1An applicant for leave to appeal from an interlocutory VCAT order under s 148 of the VCAT Act must demonstrate not only sufficient doubt about the correctness of the order but also that substantial injustice would result from leaving it unreversed; a court will not grant leave merely to provide an advisory opinion on a question of law that has no practical significance for the existing proceeding.
2Whether s 106 of the VCAT Act makes the privilege against exposure to penalties automatically available in VCAT proceedings, or whether VCAT may instead apply the privilege as a matter of fairness under s 98(1)(b), was expressly left open for determination in a case where the issue is determinative of the outcome.
3Even if penalty privilege does not automatically apply in VCAT via s 106, VCAT retains power under s 98(1)(b) to adopt procedural rules reflecting the privilege on the basis that a party alleging criminality or breach of the law should prove it without assistance from the accused person.
