Anasis v Hume City Council
[2020] VSC 620
•28 September 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
VALUATION COMPENSATION AND PLANNING LIST
S ECI 2019 05510
| ALEXANDER ANASIS | Plaintiff |
| v | |
| HUME CITY COUNCIL | First Defendant |
| and | |
| THE VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL | Second Defendant |
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JUDGE: | FORBES J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 July 2020 |
DATE OF JUDGMENT: | 28 September 2020 |
CASE MAY BE CITED AS: | Anasis v Hume City Council & Anor |
MEDIUM NEUTRAL CITATION: | [2020] VSC 620 |
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JUDICIAL REVIEW AND APPEAL – Application for judicial review of decision by VCAT to make enforcement order under s 114 Planning and Environment Act 1987 (Vic) for contravention of Council Planning Scheme – Whether Tribunal erred in weighting of evidence amounting to denial of natural justice – No error of law in Tribunal’s approach to evidence – Whether denial of opportunity to cross examine on affidavit received after conclusion of evidence amounts to denial of procedural fairness – No denial of procedural fairness arises where Tribunal gave no weight to affidavit – No grounds of review made out – Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Stavris | John Yianoulatos, Barrister & Solicitor |
| For the First Defendant | Mr R Knowles | Sherwell Harrison Munro Lawyers |
| For the Second Defendant | No appearance |
HER HONOUR:
Hume City Council applied to the Victorian Civil and Administrative Tribunal (‘the Tribunal’) for an enforcement order against Mr Anasis under the Planning and Environment Act1987 (Vic) (the ‘Planning Act’). It alleged that Mr Anasis and another person[1] used the land which they occupied for the purpose of materials recycling, transfer station and refuse disposal. After a contested hearing the Tribunal was satisfied that Mr Anasis and Mr Lee used the land for the purpose of a transfer station and were responsible for the burial of waste on the land and therefore used the land for the purpose of refuse disposal. Both of these matters were in contravention of the Hume Planning Scheme. As a result the Tribunal made an enforcement order on 31 October 2019.
[1]Mr Lee who takes no part in this proceeding and who did not participate in the Tribunal proceeding.
Mr Anasis has issued an Originating Motion seeking judicial review of the decision. The originating process states that the order made by the Tribunal on 31 October 2019 is “erroneous in nature and made without proper or adequate consideration of the evidence before the Tribunal.”[2] Unusually, the proceeding did not seek an appeal in accordance with s 148 of the Victorian Civil and Administrative Tribunal Act1998 (Vic) (the ‘VCAT Act’).
[2]Originating Motion for Judicial Review dated 28 November 2019.
There are twelve grounds of review. Eight of the grounds identify a failure to ”consider and give weight to” particular aspects of the evidence. Three further grounds respectively assert error in relying on ‘Nearmap’ aerial photographs tendered by the Council, and error in disregarding the drone aerial images tendered by Mr Anasis. A final ground identifies a failure to accord natural justice where the Tribunal conducted a view of the land without attendance of the parties. . The remedy that Mr Anasis seeks is that the orders of the Tribunal be quashed.
Leave to amend
In addition, after the exchange of submissions, Mr Anasis sought to amend his grounds of review to specifically include the ground that there has been a denial of natural justice through the Tribunal’s failure “to take account of cogent evidence providing substantial support to the Applicant’s case”.[3] An application to amend to include this specific ground of denial of natural justice, was made at the hearing of the Originating Motion which was opposed.
[3]Transcript of Proceedings, Anasis v Hume City Council & Anor (Supreme Court of Victoria, S ECI 2019 05510, Forbes J, 20 July 2020) 59.
Rule 36.01 Supreme Court (General Civil Procedure) Rules2015 (Vic) provides that leave is required to amend the grounds set out in the Originating Motion. A Court may grant leave where, amongst other things, the amendment would have the effect of better determining the real question in controversy between the parties.[4] The relevant factors in considering whether to grant leave to amend include those as canvassed in AON Risk Services Australia v Australian National University.[5]
[4]Supreme Court (General Civil Procedure) Rules2015, rule 36.01(1)(a).
[5](2009) 239 CLR 175.
Here, no question of prejudice or delay are raised. The parties have prepared submissions on the understanding that the grounds in substance go to questions of natural justice. The opposition by the first defendant is based upon the basis that the amendment has no prospect of success.
I will allow the amendment. The amendment has the effect of bringing a spotlight on the underlying complaint at the manner in which the Tribunal dealt with the evidence and argument presented by the respondent. The amendment does not introduce a new issue for determination that is patently hopeless or futile.[6] Rather it better describes the case that the plaintiff wishes to bring, which is an arguable question of natural justice and in turn should be considered on its merits.
[6]ACN 074 971 109 & Anor v The National Mutual Life Association of Australasia Ltd [2010] VSC 186, Matthews v SPI Electricity Pty Ltd; SPI Electricity Pty Ltd v Utility Services Corporation Ltd (Ruling No 6) [2012] VSC 70; ) Utility Services Corporation Ltd v SPI Electricity Pty Ltd & Ors [2012] VSCA 158.
However, for the reasons that follow none of the grounds are made out and the proceeding will be dismissed.
The nature of the proceeding
No appeal lies as of right from an order of the Tribunal. The VCAT Act permits an appeal only on a question of law, and only by leave of the Court. Mr Anasis has not sought leave in accordance with s 148 of the VCAT Act.
Mr Anasis has not advanced argument why the availability of a statutory right of appeal under s 148 on questions of law is not equally convenient, beneficial and effective. His originating process was filed on 21 December 2018, outside the 28 day time limit for a statutory appeal but within the 60 day limit for judicial review proceedings.
Hume City Council in their submissions does not take issue with review being sought under Order 56 of the Supreme Court (General Civil Procedure) Rules2015 rather than by s 148 other than to note that a party must have good reason to seek judicial review instead of applying for leave under s 148. It notes that this presents a discretionary reason to refuse relief under Order 56 where error is identified.[7]
[7]See Outline of Submissions of the First Defendant dated 16 June 2020 at footnote 15.
In Tooth v The Council of the City of Parramatta,[8] the Court said that a court will generally exercise the discretion available to it against granting a remedy (there mandamus) “where a remedy is provided by way of appeal or the like which is equally convenient, beneficial and effective.”[9] My conclusions regarding the merit of this review make it unnecessary to consider whether, in my discretion relief ought be granted.
[8](1955) 97 CLR 492 (Dixon CJ, McTiernan, Webb, Fullagar and Kitto JJ).
[9]Ibid, 498.
The Tribunal Hearing
It was uncontroversial that Mr Anasis and Mr Lee leased the property at 205 Bulla-Diggers Rest Rd in Diggers Rest (‘the land’) between April 2016 and March 2017. The land consisted of approximately 12 acres, being two fenced paddocks with a house and some sheds on it. It was located within a Green Wedge A overlay. The land was leased from owners, Mr Yeo and Ms An who were also party to the hearing for an enforcement order.
The Tribunal’s reasons identified a number of matters that were not in dispute in the hearing. First, that Mr Anasis and Mr Lee (described through the Tribunal’s reasons and here as the ‘Previous Tenants’) were involved in the sorting of waste on the land.[10] Second, that a large amount of household and other waste was present on the Land during the tenancy period.[11] Third, the volume of waste present during the tenancy was a significant amount and beyond the amount that would ordinarily be expected as part of a residential or rural use of land.[12] Fourth, there was identified material on the land included abandoned vehicles, car parts and skip bins containing metal scraps all of which belonged to Mr Stipic.
[10]Hume CC v Anasis [2019] VCAT 1712 (Presiding Member Picha Djohan, Member Claire Bennett) (‘Reasons’) [38].
[11]Ibid [38].
[12]Ibid [40].
As the Tribunal’s reasons outline, Mr Stipic had been a tenant subletting some part of the land. At the start of the tenancy period his material was stored in the northern paddock. It was moved and by the end of his tenancy, in May 2019, his materials were stored in the southern paddock. There was no dispute between the parties as to the identification of the materials left behind by Mr Stipic in the southern paddock.[13]
[13]Ibid [32].
The following factual matters were contested:
(a) the condition of the land and the amount of waste present on the land at the start of the tenancy;
(b) any agreement between Ms An and Mr Anasis as to removal of waste already on the land at the start of the tenancy;
(c) who brought waste onto the land during the period of the tenancy;
(d) whether the previous tenants used the land in contravention of the Hume Planning Scheme, and
(e) who was responsible for the burial of waste on the property discovered on inspection on 20 September 2017 following an anonymous tip-off to the Environmental Protection Agency (EPA).
The factual contests and their resolution by the Tribunal
The Tribunal hearing was protracted over seven days spread between the day it was initially scheduled for hearing on 12 June 2018 and hearing of final submissions on 24 June 2019. The reasons set out the procedural history and the particular matters that led to the protracted nature of the hearing.
The Council called Mr Hannon, EPA investigating officer and remotely piloted air system pilot, and Mr O’Mara investigating officer from the Council. Both gave oral evidence. In contesting the application oral evidence was given by Mr Anasis and Mr Darcy who tenanted the land prior to Mr Anasis and Mr Lee. Ms An appeared representing the owners and gave evidence.
In addition the Council tendered a series of aerial images from Nearmap of various dates between March 2012 and February 2019. Drone photographs of the land post-dating the tenancy period and of other property owned by Ms An were also tendered by Mr Anasis. Ms An tendered a condition report and photographs from the start of the tenancy.
The Tribunal also attended the land and conducted a view on 21 May 2019. By the time of the view much evidence had been given. At the conclusion of the evidence, Mr Stipic provided the Tribunal with an affidavit although not a party and not called to give evidence. The parties were given an opportunity to make submissions on the contents and use to be made of that affidavit.
The Council’s application was based partly upon direct evidence. First, Mr Hannon gave evidence of his observations during three inspections; two during the tenancy period and one in September 2017 after it ended. The evidence was directed at observations of various waste on the site. On the first inspection waste totalling approximately 308 cubic metres was observed. A draft Clean Up notice was sent to the previous tenants as a result of the first inspection. Mr Hannon conducted a second inspection to assess compliance during which Mr Anasis was present. On that occasion Mr Hannon’s evidence was that he observed waste totalling approximately 460 cubic metres. Photos from that inspection were tendered.
Mr O’Mara had accompanied Mr Hannon on the first inspection. He also gave evidence of his observations of waste on the land on that day and took photographs which were tendered. His evidence disclosed he also attended the land four days later but found the front gate locked. On that day he took further photographs from the neighbouring property of waste and machinery on the land which were tendered in evidence. Mr O’Mara then issued a Planning and Infringement Notice to Mr Anasis and Mr Lee requiring cessation of the use and removal of the waste by 7 January 2017. On inspection later in January 2017 Mr O’Mara gave evidence that the land appeared cleared of waste.
Mr O’Mara also gave evidence of his attendance with Mr Hannon in September 2017 and his observations of the excavation of the trenches on that day. In September 2017, after the conclusion of the tenancy Mr Hannon and Mr O’Mara inspected the land with an excavator contractor. This inspection was in response to an anonymous tipoff received by the EPA. Mr Hannon and Mr O’Mara gave evidence as to their observations of waste that had been buried in trenches, exposed by the excavations conducted by the contractor. Their evidence described the general nature of the waste observed.
The various Nearmap images taken during the tenancy were relied on as disclosing areas covered by waste and prime movers with open trailers containing waste on dates in 2016. Photos in February 2017 showed, among other things, the piles of soil had appeared to have been spread in areas which showed a difference in soil colouration and an increase in the volume of material in the southern paddock.
Ms An gave evidence. She gave evidence as to the condition of the land at the start of the previous tenancy and tendered a condition report bearing landlord and tenant signatures and photographs of the land taken by her on 15 April 2016. She said that on becoming aware of the EPA investigation she inspected the land before the conclusion of the tenancy period on a number of occasions and took photographs of waste being sorted by Mr Anasis. On concluding that Mr Anasis was not complying with the Clean Up notice the owners issued a breach notice in December 2016 under the residential tenancy agreement. She gave evidence that she witnessed a truck bring skip bins full of waste onto the land and deliver the skips to where the waste sorting was being done. Two further breach notices were issued by the owners. Tribunal proceedings in the residential tenancies list were commenced and the Tribunal found the Owners were entitled to a possession order. [14] The previous tenants agreed to vacate by 22 March 2017.
[14]On 8 March 2017 see Reasons (n 10) footnote 16, VCAT Order Ref No: R2017/8143/00.
The Council relied on the evidence of Ms An in its application.
Mr Anasis told the Tribunal that during the previous tenancy he operated a waste removal business called ‘Dirty Harry’s Bin Hire’. He gave evidence that at no time did he bring waste onto the land. He said that a large amount of waste was present on the land at the start of the previous tenancy, ‘hidden’ under trees and in the existing sheds. He said that as part of an agreement with Ms An he sorted a large amount of this waste already present and that once sorted it was disposed of at approved disposal facilities. He said Ms An did not make payment for this work as had been agreed. His evidence was also that Ms An put a sign on the land’s road frontage advertising for clean fill and that he spread the fill that was deposited on the land at Ms An’s direction. Ms An denied all these matters.
Mr Anasis also gave evidence that Mr Stipic ran a skip bin business and said he had observed Mr Stipic bringing waste onto the land during the tenancy period. He tendered documents relating to a mobile phone number linked to an advertised skip bin hire business and asserted that this was Mr Stipic’s business. He denied burying waste underground and asserted that the waste excavated by Mr Hannon and Mr O’Mara was buried by someone else either before or after the previous tenancy.
Mr Anasis called Mr Darcy as a witness. Mr Darcy had leased the property prior to Mr Anasis and Mr Lee. He had sublet part of the northern paddock of the land to Mr Stipic to store items. Mr Darcy provided a witness statement that said when he vacated the land there were large amounts of rubbish. When cross-examined he said that other than Mr Stipic’s items and a small pile left by him near the rear of the dwelling, he could not recall other rubbish waste that remained.
Mr Anasis also tendered a video taken when he ceased occupation of the land. The video showed the interior of the dwelling where he had resided and parts of the land that were not relevant to the dispute.
Turning then to the five matters in contest between the parties, the Tribunal resolved them in this way:
(a) The Members preferred the evidence of Ms An and the documentary evidence as to the amount of waste present on the land at the start of the tenancy. They concluded that Mr Darcy was not a reliable witness as his evidence did not withstand cross-examination and made no mention of waste left under trees or in sheds on the land. They rejected the evidence of Mr Anasis which was given after that of Mr Darcy that waste was present but hidden from aerial view under trees and in sheds;
(b) The Tribunal preferred the evidence of Ms An that there was no agreement for the removal of waste already on the land at the start of the previous tenancy or for the deposit and spreading of clean fill near the end of the previous tenancy;
(c) The Tribunal found that it was not plausible that some other person brought waste onto the land or buried it during the period of the previous tenancy given Mr Anasis and Mr Lee had exclusive possession and Mr Anasis was in occupation of the dwelling on the premises. It rejected the argument that Mr Stipic was responsible as Mr Stipic, though present at the Tribunal on one day of the hearing, was not called by Mr Anasis. The Tribunal did not accept that the documents tendered as to Mr Stipic’s waste business were of any assistance in deciding the issue of who brought waste onto the land during the period of the previous tenancy or buried waste on the land. The Tribunal found on the balance of probabilities that Mr Anasis and Mr Lee were responsible for bringing onto the land the waste present during Mr Hannon’s inspections and observed on the Nearmap photos of October and December 2016.
(d) The Tribunal found, as was admitted by him, that Mr Anasis was sorting waste on the land and that this activity amounted to land use within the meaning of ‘transfer station’ within the Hume Planning Scheme. That in itself was sufficient to establish breach. It was not satisfied that the land had been used for the purpose of ‘materials recycling’. It also accepted, consequent to its finding about the burial of waste, that there had been a contravention by using the land for the purpose of ‘refuse disposal’. The Tribunal did not accept Mr Anasis’ argument that the waste was brought onto the land either before or after his occupation of the land. The transfer station and refuse disposal amounted to contravention of the Hume Planning Scheme. The refuse disposal led to the making of the enforcement order[15]
(e) The Members found on the balance of probabilities that Mr Anasis was responsible for the burial of waste. It did so as a matter of inference from four matters: the acceptance of Ms An’s evidence that she did not arrange for clean fill or direct Mr Anasis to spread clean fill, the co-incidence of the area which Mr Anasis admitted spreading fill with the area where the trenches of buried waste were uncovered, the co-incidence of the type of waste in the trenches with that being sorted by Mr Anasis earlier, and the unlikely possibility, for which no evidence was presented, that some other person was responsible.
[15]Reasons (n 10) [134-136].
The Legislative Framework
The Hume Planning Scheme provides for Green Wedge Zoned land. The land was within Green Wedge A. During the tenancy period land use within this zone prohibited use for materials recycling, refuse disposal or transfer station.
Where the land is used for a prohibited use, s 114 of the Planning and Environment Act 1987 (Vic) provides for the Tribunal to make an enforcement order. The Hume City Council is a responsible authority, able to apply for an enforcement order[16] against the plaintiff, as an occupier at the relevant time. The Tribunal may grant the application where:
“…a use or development of land contravenes or has contravened, or, unless prevented by the enforcement order, will contravene this Act…”[17]
[16]Planning and Environment Act 1987 (Vic) s 114(1).
[17]Ibid.
The enforcement order made by the Tribunal directed the plaintiff to take certain steps and set a timeline for action. In summary it required preparation of an Assessment and Sampling Program to investigate the extent of waste that was present and then to propose a Materials Removal and Reinstatement Plan for approval and then implementation. There is no challenge to the jurisdiction of the Tribunal, the terms of the Enforcement Order or the legal principles upon which it determined the question.
Legal Principles
The decision of the Tribunal is not amenable to a review on the merits. Mason J in Minister for Aboriginal Affairs v Peko Wallsend Ltd said that it is not a sufficient reason to overturn a decision on review for “mere preference for a different result, when the question is one on which reasonable minds may come to different conclusions”.[18]
[18]Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24, 42.
The appropriate weight to be accorded to evidence and the preference for one piece of evidence over another having heard and seen the witnesses is something where reasonable minds may differ and squarely addresses the merit of the decision.
The VCAT Act makes clear that the Tribunal is bound by the rules of natural justice.[19] That requires that it provide a party with a reasonable opportunity to present evidence and make submissions. It requires the Tribunal to engage with the arguments that are presented to it and to have regard to and assess the significance of the evidence that is presented. The Tribunal however, is not bound by the rules of evidence and, within the boundaries of natural justice may inform itself on any matter as it sees fit.[20]
[19]VCAT Act, s 98(1)(a).
[20]VCAT Act, s 98(1)(b) and (c).
A failure to take account of cogent evidence providing substantial support for a party’s case may amount to a denial of natural justice.[21] The obligation to accord procedural fairness means that an applicant:
“have an opportunity to tailor the presentation of evidence and the making of submissions to the procedure to be adopted by the decision-maker. Accordingly, procedural fairness ordinarily requires that an applicant be appraised of an event which results in an alteration to the procedural context in which an opportunity to present evidence and make submissions is routinely afforded.”[22]
[21]Minister for Immigration and Border Protection v SZMTA (‘SZMTA’) 264 CLR 421 in respect of the obligation of the Refugee Review Tribunal under Part 7 of the Migration Act1958 (Cth).
[22]SZMTA (n 21) [29] per Bell, Gageler, Keane JJ.
To make out this ground of a failure to take account of ‘cogent evidence providing substantial support’ for his case, Mr Anasis does not point to some ‘event’ or procedural shortcoming that gives rise to a lack of opportunity to respond and present evidence or make submissions. Rather the basis of complaint is that his evidence was not accepted by the Tribunal on contested matters. In fact, the presence of Mr Stipic at the Tribunal during the hearing, the opportunity to call him as a witness, and the potential consequences of not doing so were specifically raised with Mr Anasis as matters of natural justice. Nor has Mr Anasis shown that had the Tribunal given him opportunity to adduce evidence or make submissions, then that failure gives rise to a realistic possibility that the decision could have been different had the information been disclosed or considered.
Equally, a failure to respond to an argument based upon established facts may also amount to a denial of natural justice.[23] Where this is so, it is not the fact finding task that is in error but whether the analysis or arguments submitted by a party arising from those facts has been considered by the decision-maker. It is for the decision maker to assess the relevance of and weight to be attributed to items of evidence in its fact finding task. Mr Anasis does not point to a legal argument made on his behalf that was not responded to by the Tribunal.
The submissions of the parties
There were eight aspects of the evidence, or submissions about that evidence, that the plaintiff argued the Tribunal had failed to adequately take into account. Regarding the issue of the state of the land at the commencement of the tenancy, the plaintiff identified his own evidence about the amount of rubbish present, including waste additional to that shown in the photos taken by Ms An,[24] his dispute that he signed the Condition Report,[25] his evidence that he removed waste from the land at the behest of the owner, his evidence as to an agreement to extend the tenancy in exchange for removing rubbish already stored on the land when the plaintiff arrived,[26] and the written statement of Mr Darcy.[27] The submissions of the plaintiff take issue with the findings arrived at by the Tribunal on these matters.
[24]Ground a.
[25]Ground b.
[26]By ground (a)(i)-(v).
[27]By ground (c).
The plaintiff took issue with the Tribunal’s conclusion that the plaintiff’s evidence as to waste hidden under trees was inconsistent with the Nearmap photographs[28] submitting that the Tribunal’s phrasing of “no apparent signs” or describing matters as “there appears to be…” as allowing a conclusion that rubbish may have been present. The plaintiff submitted that the Nearmap photographs could not be relied on, as they had been, to identify rubbish and waste on the property.
[28]Ground c.
The plaintiff submitted that the concession by Mr O’Mara and Mr Hannon in cross examination that they had not observed him bring waste on to the land was not properly considered by the Tribunal in circumstances where the other evidence did not attest to who was responsible for bringing the waste onto the land. [29] Also, it was submitted the Tribunal failed to give adequate consideration to Mr Lee’s statement to Mr Hannon that Mr Lee intended to sort and remove the waste that was present.[30]
[29]Grounds e and f.
[30]Ground d.
In rejecting the drone photographs tendered by the plaintiff as probative of the issues for determination, it was submitted that the Tribunal erred because they were ”important in substantiating the Plaintiff’s claims of waste disposal being put on the land by someone else.”[31]
[31]Ground g and j, Plaintiff’s Reply Submissions dated 29 June 2020 [13].
There were a number of aspects raised by the plaintiff in the Tribunal’s dealing with the evidence of Mr Stipic’s activities.[32] First the plaintiff’s evidence of mobile number and business searches was said to raise a line of obvious inquiry that the Tribunal could have ascertained. It was also submitted that Mr Stipic should have been a party to the proceeding. Finally, in relation to the Tribunal’s handling of the unsolicited affidavit of Mr Stipic, the plaintiff submitted that the plaintiff was denied an opportunity to cross-examine Mr Stipic on the contents of that affidavit.
[32]Ground h.
Finally the plaintiff submitted that receipts tendered demonstrating waste disposal at an approved facility were not given adequate weight to support the plaintiff’s evidence of disposal under an agreement with the owners.[33]
[33]Ground k.
The first defendant’s submissions emphasised that the Tribunal dealt with the competing evidence on the five contested issues and gave detailed consideration to the resolution of each fact in dispute on the material before it. Each conclusion was open to it. The first defendant submitted that the requirement to consider and respond to evidence presented and submissions made does not compel a Tribunal to give any particular weight to that argument or evidence. To the extent that the plaintiff submitted the Tribunal failed to consider particular evidence at all, the defendant’s written outline set out the findings made about that evidence and the reasons supporting each finding.
Analysis
The plaintiff’s complaint that evidence was not given adequate consideration or appropriate weight, is in respect of nearly all the pieces of evidence identified, a complaint about the weighting of evidence that was considered. The complaints amount to an attempt to seek merits review of the decision. The grounds directed at the state of the land at the commencement of the tenancy, the way in which the Nearmap images were considered and the evidence of Mr Darcy raise no question of denial of natural justice. Further the response of Mr Lee to the Abatement Notice issued by Mr Hannon[34] was at best evidence of what Mr Lee said he intended to do with the waste that was present. The statement was not treated by the Tribunal as any admission by Mr Lee (let alone against Mr Anasis). As a statement of intent it had little probative value measured in light of evidence of actual events.
[34]Ground (d).
The plaintiff’s complaint about the concessions made by Mr Hannon and Mr O’Mara perhaps amounts to a submission that there was no evidence upon which the Tribunal could conclude Mr Anasis had brought the waste on to the property. If so, the submission must be rejected. The Tribunal reached its conclusion not only based on direct evidence but on inferences drawn. The observation of Ms An as to a truck delivering waste to the area where Mr Anasis was sorting waste did not, so Mr Anasis submits prove he ‘orchestrated the truck’. The Tribunal made clear that it was not necessary to make findings about who collected the waste on the land. The Tribunal’s conclusions were based on findings as to the activity of sorting and the burial of waste that was present.
The Tribunal used the observation by Ms An of the truck delivering to the area where sorting was being conducted as part of the inferential reasoning to conclude that “it was more probable than not that the previous tenants were responsible for the collection of refuse or waste on the land…’’.[35] The Tribunal is not confined to acting on direct evidence. To confine consideration only to direct evidence would amount to an error of law. It is necessary for the decision makers to “address the circumstantial - or inferential - case that was put by the applicant”.[36] There is no error in the Tribunal’s approach.
[35]Reasons (n 10) [130] (f).
[36]See Ferris v State of Victoria [2018] VSCA 240 [23].
Next, the Tribunal dealt with the argument about Mr Stipic’s involvement by saying:
Although part of Mr Anasis’ case was that Mr Stipic was in fact responsible for the importation of the waste onto the Land that the Previous Tenants sorted and disposed of, Mr Stipic was not called as a witness in his defence despite counsel for Mr Anasis being queried on this issue by the Tribunal when Mr Stipic was present during part of the hearing on 22 May 2019.
Previously to Mr Stipic’s attendance at the hearing, counsel for Mr Anasis and Mr Sherwell for Council both informed the Tribunal that attempts to contact Mr Stipic had been unsuccessful.[37]
[37]Reasons (n 10) [74].
After conclusion of the evidence the Tribunal received an affidavit from Mr Stipic. The Tribunal described the affidavit as making assertions about the state of the land before and during Mr Anasis’ tenancy and activities carried out, both of which were in dispute. The parties were given the opportunity to make submissions on the content of that affidavit and the weight to be given to it.[38] Ultimately, the Tribunal determined to give no weight to the untested assertions.
[38]See Reasons (n 10) [25].
The plaintiff made written submissions to the Tribunal regarding Mr Stipic’s affidavit. Those submissions addressed the representation to the Tribunal that the Council and Mr Anasis had both attempted to contact Mr Stipic prior to him swearing the affidavit. It submitted that the affidavit should not be received into evidence and asserted that there had been no opportunity to test the evidence. If it were necessary to address the affidavit, it was estimated that re-opening the evidence would require a further three days of hearing. Both the Council and Mr Anasis indicated Mr Stipic would not be called as a witness on the day that he attended the hearing to observe. The Tribunal had specifically raised this issue with Mr Anasis’ Counsel on the day of Mr Stipic’s presence.
Natural justice required the parties to be advised of and have an opportunity to comment on both the content of the affidavit and the use that might be made of it. The plaintiff submitted it should not be received into evidence. It was clearly relevant but, as there had been no opportunity to test it, it was appropriate for the Tribunal to give it’s untested assertions no weight in all the circumstances. The plaintiff does not point to cogent evidence in that document that was supportive of his case in the submissions made to the Tribunal. On the contrary he sought to exclude it with the result that the Tribunal declined to give it any weight. In circumstances where the plaintiff had also not taken up the opportunity to call Mr Stipic as a witness, no denial of procedural fairness arises.
The Tribunal’s process is not an inquisitorial one. It is not for the Tribunal to follow lines of inquiry to establish material facts, but for the party to prove those fact upon which they rely. The business name search and mobile phone number tendered by Mr Anasis established no fact relevant to the presence of waste buried on the land. It did not connect either search to Mr Stipic. There was no ‘critical fact’ before the Tribunal that raised an obvious inquiry. It was open to the Tribunal to conclude that the evidence held little probative value. This is particularly so when Mr Anasis did not seek to call Mr Stipic when he was present at the Tribunal.
Finally Mr Anasis relied on a series of receipts as evidence supporting the assertion that he had removed the waste that was present at the inspections in October and December 2016 and so he was not responsible for the buried waste. Mr Anasis submits that the Tribunal failed to give adequate weight to the receipts provided as to waste disposal at an approved facility.[39]
[39]Ground (k).
The plaintiff tendered receipts from Coburg Transfer Station. He did so to support his argument that he disposed of waste present on the land pursuant to an agreement with Ms An. He said to the Tribunal that Ms An agreed to pay labour and tip costs associated with removing rubbish from the land which totalled $15,000. Ms An’s evidence, which the Tribunal accepted, was that there was no such agreement. Mr Anasis made no mention of the receipts in his written submission to the Tribunal.
The Tribunal found that Mr Anasis produced no documentary evidence “to support any actions he claimed to have undertaken in furtherance of that agreement such as disposing of waste originating from the land to an approved waste facility during the Tenancy Period”. [40]
[40]Reasons (n 10) [68].
Mr Anasis in fact tendered twenty-six receipts to the Tribunal. Those documents were Exh “MOS1” attached to the affidavit of Mr Sherwell, solicitor for Hume City Council in this proceeding.[41] The receipts were issued by Coburg Transfer Station to Dirty Harry, for various dates between 23 September 2015 and 8 December 2016. None identify the source of the waste or any ‘customer’ of Dirty Harry business. Three receipts are dated the same day as the Council inspection on 4 October 2016, a further six are dated after that, with the latest being 8 December 2016 before the second Council inspection on 20 December 2016. There is nothing to connect the receipts to the land. On the first Council inspection approximately 308 m3 of waste was observed. Even on the most favourable interpretation of the receipts on and after that date: that they all related to removal of waste from the land, the documents do not assist Mr Anasis. The second inspection estimated the presence of 460m3 of waste at the premises. The Tribunal did not err by failing to give adequate consideration to those documents.
[41]Affidavit of Mr Matthew Sherwell filed in this proceeding sworn 1 July 2020.
The final ground relied on was that the Tribunal conducted a view without the parties and drew conclusions about Mr Stipic’s waste without regard to Mr Anasis’ sworn evidence.[42] The Tribunal attended the land on 21 May 2019 unaccompanied.[43] The Tribunal conducted the hearing on the day prior and the two days immediately following the inspection. Section 129 of the VCAT Act gives the presiding member a discretion to conduct a site inspection where it is considered desirable. The Act provides for inspection by the Tribunal with or without the parties[44]. The plaintiff does not contend that the conduct of the inspection was other than in accordance with s 129. Although the ground described that the Tribunal ‘failed to allow the parties to view the subject land’, there was nothing put before the Court to support this assertion.
[42]Ground l.
[43]Reasons (n 10), 4.
[44]VCAT Act, s 129.
There is no suggestion that natural justice was breached either in anticipating the inspection or in the opportunity to make submissions about the Tribunal’s observations after the inspection. The Tribunal’s reasons made three references to its inspection. It referred to the division of the land into two paddocks. It referred on two occasions to the items stored by Mr Stipic in the southern paddock about which, it said, there was no dispute between the parties.[45] It made no observations about the contentious matter alleged by Mr Anasis that Mr Stipic had brought waste onto the land. The ‘conclusions’ it formed from the view went no further than observations about the waste present at that time which was uncontroversial. The inspection did not form the basis of any conclusion as to the actions of Mr Stipic as alleged by Mr Anasis. This ground fails.
[45]Reasons (n 10) [32] and [53].
None of the grounds of review are made out. As such it is unnecessary to determine a grant of a remedy as a discretionary matter given the availability of an avenue of appeal. The proceeding will be dismissed. In the absence of a minute of consent as to orders to be made in accordance with these reasons, I will receive submissions on the appropriate orders, including costs orders, within 14 days.
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