Australian Red Hill Real Estate Group Pty Ltd v Jelic
[2023] VSC 549
•13 September 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
VALUATION, COMPENSATION AND PLANNING LIST
S ECI 2022 05216
BETWEEN:
| AUSTRALIAN RED HILL REAL ESTATE GROUP PTY LTD | Applicant |
| v | |
| MARINKO JELIC & ANOR (according to the attached Schedule) | Respondents |
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JUDGE: | Irving AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 September 2023 |
DATE OF JUDGMENT: | 13 September 2023 |
CASE MAY BE CITED AS: | Australian Red Hill Real Estate Group Pty Ltd v Jelic & Anor |
MEDIUM NEUTRAL CITATION: | [2023] VSC 549 |
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PRACTICE AND PROCEDURE – Application for extension of time to appeal against decision of Victorian Civil and Administrative Tribunal (VCAT) – Delay caused by choices applicant made – First respondent entitled to benefit of VCAT’s orders and unfair to expose first respondent to further litigation – Length of delay by applicant material – Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P O’Farrell with Ms C van Proctor | HWL Ebsworth Lawyers |
| For the First Respondent | Mr R Watters | Polis Legal |
| No appearance for the Second Respondent |
HIS HONOUR:
Introduction
Australian Red Hill Real Estate Group Pty Ltd (applicant) has sought leave to appeal an order of the Victorian Civil and Administrative Tribunal (VCAT) in the matter of Australian Red Hill Real Estate Pty Ltd v Melton CC (Corrected) [2022] VCAT 1165. VCAT originally made the relevant order on 10 October 2022 but issued a corrected order on 18 November 2022.
The applicant filed its notice of appeal on 16 December 2022. This was outside the 28 day time limit provided for in s 148(2) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act) for filing an application for leave to appeal. The applicant has applied under s 148(5) of the VCAT Act for an extension of time to file its notice of appeal.
Mr Jelic (first respondent) has filed a summons seeking orders that the applicant’s application for an extension of time be dismissed, which, if successful would have the effect that the proceeding would be dismissed.
The Court has excused Melton City Council (second respondent) from taking any step in the proceeding. Consequently, the second respondent did not participate in the hearing.
For the reasons given below I have decided to dismiss the applicant’s application for an extension of time.
Background
The applicant is the registered proprietor of land at 125–141 Alfred Road, Strathtulloh, Victoria (the land). On 15 September 2020, the second respondent issued a planning permit permitting a residential subdivision of the land. On 3 September 2021, the second respondent issued an amended planning permit allowing the applicant to apply for leave to compulsorily acquire easements for sewer and stormwater pipes that would run across the first respondent’s land.
On 13 October 2021, the applicant applied to VCAT under s 36 of the Subdivision Act 1988 (Vic) (Subdivision Act) for leave to acquire the easements. VCAT refused that application on 10 October 2022. On 18 November 2022, at the request of the applicant, VCAT issued the corrected order.
On 16 December 2022, the applicant filed its notice of appeal. At the hearing the applicant’s counsel resiled from the applicant’s primary argument that an extension of time was not required because its notice of appeal was filed within 28 days of the 18 November 2022 order.
The circumstances which the applicant said explained the reason for the making of the corrected order and the delay were set out in the affidavit of Alexander Gelber sworn 5 April 2023. Mr Gelber is a partner at the firm of HWL Ebsworth Lawyers, the applicant’s legal representative. Mr Gelber deposed that:
(a) on 11 October 2022, his office received an email from VCAT attaching the orders made on 10 October 2022;
(b) Mr Gelber was on leave from 26 September 2022 until 31 October 2022 but nonetheless gave instructions by email to his personal assistant to forward the VCAT order to Mr Williamson, the person from whom HWL Ebsworth Lawyers received instructions in the VCAT proceeding;
(c) on 17 October 2022, Mr Gelber’s personal assistant sent a copy of the VCAT order to Mr Williamson with a message confirming Mr Gelber would contact Mr Williamson after he returned from leave on 31 October 2022;
(d) on 27 October 2022, Mr Williamson responded to Mr Gelber’s personal assistant instructing HWL Ebsworth Lawyers to prepare advice in relation to the VCAT order ahead of 31 October 2022;
(e) on 28 October 2022, Mr Lofting, another partner at HWL Ebsworth Lawyers, responded to Mr Williamson by email confirming that the firm was in the process of considering the implications of the VCAT order and would provide advice to Mr Williamson by the end of the following week;
(f) on 2 November 2022, Mr Gelber returned to the office from leave;
(g) on 7 November 2022, Mr Gelber provided advice on the applicant’s options following the VCAT decision to Mr Williamson by email, including that it would be necessary to engage a barrister to provide written advice on the prospects of any appeal;
(h) on 16 November 2022, Mr Gelber advised VCAT that there was a typographical error in the VCAT order and requested it be corrected;
(i) on 18 November 2022, VCAT made the corrected order under s 119 of the VCAT Act;
(j) HWL Ebsworth Lawyers received the corrected order by email on 22 November 2022;
(k) on 15 December 2022, Mr Gelber confirmed Mr Williamson’s instructions to file a notice of appeal;
(l) on 16 December 2022, HWL Ebsworth Lawyers filed the notice of appeal in this Court.
The typographical error identified by Mr Gelber was that while the parties to the proceeding were correctly identified on the face of the order, the medium neutral citation read, ‘Australian Red Hill Real Estate Group Pty Ltd v Melbourne CC [2022] VCAT 1165’ (emphasis added). The correct relevant authority, being the second respondent, was otherwise named throughout the order and reasons.
The correction order issued by VCAT on 18 November 2022 was in the following terms:
(a) Pursuant to s 119 of the Victorian Civil and Administrative Tribunal Act 1998, the Tribunal’s order in Application P11622.2021 dated 10 October 2022 is corrected as follows.
(b) The medium neutral citation issued for publication purposes is amended to read: Australia Red Hill Real Estate Group Pty Ltd v Melton CC (Corrected) [2022] VCAT 1165.
The applicant’s notice of appeal raises five proposed grounds of appeal:
1 The Tribunal failed to properly construe and apply section 36 of the Subdivision Act 1988 (the Act) including by:
(a) imposing tests not supported by the legislation;
(b) requiring that there were no other means, or that all alternatives had been exhausted, before being in a position to order the acquisition of an easements; and/ or
(c) adopting as tests the matters raised in JT Snipe Investments Pty Ltd v Hume CC (Red Dot) [2007] VCAT 1831.
2. The Tribunal failed to properly construe and apply the ‘unreasonable impact on amenity’ test under section 36 of the Act by imposing a distinct ‘net community benefit’ test that is not supported by the legislation.
3. The Tribunal failed to properly construe and apply the following terms as they are used in section 36 of the Act:
(a) economical and efficient
(b) required
(c) amenity.
4. The Tribunal took into account irrelevant considerations, including
(a) the erroneous conflation of commercial and development impacts, which are not considerations called into question by the text of section 36 of the Act as amenity impacts.
(b) the statutory powers that might be open to public authorities to acquire interests in land and provide infrastructure.
5. The Appellant was denied natural justice as it did not have a reasonable opportunity to be heard in the determination of certain matters, including whether the existence or otherwise of a ‘net community benefit’ arising from the acquisition of the easements is relevant to the exercise of the Tribunal’s discretion.
Relevant principles
Section 148(2) of the VCAT Act provides that an application for leave to appeal from an order of VCAT is to be made within 28 days of the date of the order. Section 148(5) of the VCAT Act allows the Court to extend that time limit.
In Brandwill Holdings Pty Ltd v Jonson (Brandwill),[1] Emerton J succinctly set out the principles relevant to an application to extend time:
[1][2014] VSC 356, [12]–[15] (Brandwill).
The principles applicable to the exercise of the discretion to extend time under s 148(5) of the VCAT Act area (sic) as follows:
(a)The power to grant an extension [of] time is discretionary and its exercise is not automatic;
(b) The purpose of the discretion is to do justice between the parties;
(c)There are no fixed or binding rules for the exercise of the discretion and each case depends on its facts;
(d)There are, however, factors that influence the exercise of the discretion, including the length of and reasons for the delay, whether there is an arguable case and the extent of any prejudice to the respondents;
(e)An extension will not be granted if the case is hopeless, unarguable or bound to fail; and
(f)The party seeking the extension bears the onus of proving it should be granted.
On any view, in order to be granted the indulgence of an extension of time, the applicant must provide a reasonable explanation for the delay. This is especially so when the delay is significant.
…..
[W]hatever the merits of the proposed appeal and the public interest in it being heard and determined, the applicant must still provide a good explanation for the delay. This too has to do with the requirement to do justice between the parties. The legislature has decided that the period in which an appeal may be brought from a Tribunal decision is limited. As McHugh J said in Brisbane South Regional Health Authority v Taylor, a limitation period should not been seen as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature’s judgement that the welfare of society is best served by causes of action being litigated within the limitation period even if this may result in a good cause of action being defeated. In this case, the legislature has created only a small window in which to bring an appeal from the Tribunal. This no doubt has to do with the nature of the Tribunal’s jurisdiction and as well as the more general need for finality in litigation. The parties to the Tribunal proceeding are entitled to the measure of certainty that this constraint provides. A good reason for the delay therefore remains a very important consideration for the exercise of the Court’s discretion to extend time.
The applicant’s submissions
The applicant submitted that an extension should be granted because:
(a) the applicant has explained the reason for the delay, the circumstances surrounding the making of the corrected order and it was reasonable for the applicant to take the position that the corrected order was the order from which leave to appeal was required;
(b) any error of the applicant’s legal representative should not be visited upon the applicant;
(c) the length of the delay was not significant and the first respondent has not identified any relevant prejudice he would suffer if the extension were granted, noting that costs of the proceeding in VCAT and in this Court do not constitute relevant prejudice because these costs would have been incurred if the application had been commenced within 28 days of the VCAT order of 10 October 2022;
(d) the applicant will be prejudiced if the Court does not grant the extension because it will be shut out from pursuing its appeal of VCAT’s decision and potentially obtaining the easements;
(e) the applicant’s proposed appeal has sufficient prospects of success because the applicant has identified clear questions of law relating to the proper construction and application of s 36 of the Subdivision Act;
(f) the subject matter of the applicant’s appeal is of clear importance given it will address the proper construction and application of s 36 of the Subdivision Act, and is of practical utility to the development of the applicant’s land;
(g) the filing of the notice of appeal within 28 days of the date of the corrected VCAT order supports the grant of an extension; and
(h) the Court can take into account the uncertainty as to the time to file a notice of appeal in the exercise of its discretion to grant an extension.
The applicant submitted that one option available to the Court would be to refer the question of whether an extension of time should be granted to the trial judge to be determined at the hearing of the application for leave to appeal. The applicant submitted that this would allow a full consideration of the merits of the applicant’s proposed grounds of appeal. The first respondent opposed this course. Deferral of the question after full argument to another judicial officer for determination would be contrary to the efficient disposition of the business of the Court and the overarching purpose of the Civil Procedure Act 2010 (Vic).
Consideration
The original VCAT order was issued on 10 October 2022. The 28 day time limit to file a notice of appeal expired on 7 November 2022. Mr Gelber’s application to VCAT to correct the order was made on 16 November 2022, after the expiration of the time limit. The applicant’s notice of appeal was filed on 16 December 2022, 39 days after the expiration of the time limit. A delay of this size is material and requires a full explanation.
I am not satisfied that the applicant has provided a reasonable explanation for the delay. I accept the first respondent’s submissions that:
(a) despite being on leave, Mr Gelber received the VCAT decision on 11 October 2022 and immediately directed his personal assistant to provide it to his client, so the applicant had the benefit of almost the entire appeal period to consider VCAT’s reasons;
(b) the applicant requested advice on its prospects of appeal on 27 October 2022, i.e. within the 28 day time limit;
(c) Mr Gelber did not advise the applicant until the final day of the time period that it would be necessary to obtain counsel’s advice on the prospects of any appeal from the VCAT decision and there is no explanation of why counsel’s advice was not sought earlier;
(d) the applicant has provided no explanation of what occurred between 7 November 2022 and 16 December 2022 so that the Court is left unaware of whether counsel’s advice was in fact sought, when that occurred and when it was received; and
(e) the applicant’s request that VCAT correct its order did not prevent the applicant filing a notice of appeal.
I am not satisfied that the nature of the correction to the VCAT order requested by Mr Gelber, being to correct the name of the relevant authority in the medium neutral citation, gave rise to any uncertainty or confusion about the terms of the substantive VCAT order or reasons issued on 10 October 2022 or the time to file a notice of appeal. A corrected order in any event operates from the date of the earlier order.[2] Given the terms of the order made by VCAT on 18 November 2022, it is difficult to accept the applicant’s submission that its lawyers thought this was the order being appealed from. Additionally, Mr Gelber’s request that VCAT correct the order was made after the expiration of the time limit. The applicant has not provided any reasonable explanation of why the error in the medium neutral citation rendered it unable to file an appeal within time.
[2]Batagol & McGill v Monk & City of Port Phillip [2000] VSC 48, [23].
The applicant’s evidence does not disclose whether Mr Gelber discovered the error in the medium neutral citation during the 28 day time limit or only after it had expired. In my view, the applicant’s decision to pursue the correction to the order was a deliberate and informed choice, made well after 7 November 2022, the date the time limit expired and the date Mr Gelber advised his client of the need to obtain counsel’s advice on the prospects of any appeal.
Given the absence of a proper explanation for the delay, particularly in the period from 27 October 2022 to 7 November 2022, it is difficult to ascribe its cause to the applicant’s solicitors. I cannot be satisfied that this is a case involving an error on the part of the legal representative which should not be borne by the client.
The applicant’s lack of a reasonable explanation for the delay is a sufficient basis for the Court to refuse to exercise its discretion to grant the extension of time.[3] I agree with Emerton J’s observation in Brandwill:
I do not consider that the requirement to provide a good explanation for the delay can be lightly brushed aside. There would have be to a very strong public interest or other reason to allow an appeal to be brought out of time in the absence of a good explanation for the delay.[4]
[3]Brandwill (n 1).
[4]Ibid [26].
The applicant submitted the Court should grant an extension of time because its grounds of appeal relate to the proper construction and application of s 36 of the Subdivision Act and have sufficient prospects of success. The first respondent acknowledged the importance of a question of law can be a relevant factor in the exercise of the Court’s discretion and that s 36 of the Subdivision Act has yet to be the subject of judicial consideration. The first respondent submitted, however, that the questions raised by the applicant’s notice of appeal are ‘fundamentally niche’ because very few applications are made to VCAT under that section.
I accept that the applicant’s notice of appeal raises important questions relating to the construction of statutory provisions that have not previously been considered by the Court. I agree, however, with the first respondent that the questions relevant to the construction and application of s 36 of the Subdivision Act are likely to recur and the public interest in the resolution of those questions can be pursued by a subsequent litigant making an application in a timely manner.
While conceding that the applicant’s proposed grounds of appeal are not hopeless, the first respondent submitted that they are ‘sufficiently weak’ that they do not justify an extension of time. In particular the first respondent submitted:
(a) The proposed grounds are unparticularised and do not identify any statutory or case law to support a finding that VCAT erred in reaching its decision, nor refer to particular paragraphs of VCAT’s reasons;
(b) The applicant has not identified the meaning it says should be attributed to s 36 of the Subdivision Act;
(c) The applicant’s argument that VCAT applied the wrong test in relation to the assessment of amenity impacts – being the test articulated in JT Snipe Investments Pty Ltd v Hume CC (Red Dot)[5] – appears contrary to its written and oral submissions in the VCAT proceeding referring to that case without asserting at any time it represented an erroneous approach;
[5][2007] VCAT 1831, [28].
(d) The broad meaning of ‘amenity’ adopted by VCAT has been endorsed by the Court of Appeal in planning cases;
(e) The applicant has not identified anything in the Subdivision Act that expressly or by necessary implication identifies matters irrelevant to VCAT’s consideration; and
(f) The applicant had ample opportunity to provide submissions to VCAT about the nature and scope of the ‘unreasonable loss of amenity’ test as this point was raised in the first respondent’s submissions filed in advance of the hearing.
I accept the applicant’s proposed grounds of appeal are expressed at a level of generality that makes an assessment of their merit difficult. I cannot be satisfied however that they are individually or collectively of no merit. I also note that the first respondent concedes the proposed grounds are not hopeless.
I accept that if an extension of time is not granted, the applicant will be shut out of pursuing its appeal and thus it will be prejudiced.
Even if I accept the applicant’s argument that the prejudice to the first respondent in the nature of costs is not relevant,[6] the absence of prejudice to the first respondent is but one factor to be considered in the exercise of the discretion to grant an extension of time. There is no evidence that the first respondent has taken any action in reliance on the VCAT order. The first respondent is entitled, however, to the benefit of the VCAT order. It would be unfair for the first respondent to have to engage in further litigation in circumstances where the applicant deliberately chose not to file its notice of appeal within time.
[6]Azisovski v Swordtail Pty Ltd [2021] VSC 605, [31].
As has been noted by the Court many times, there is a strong public interest in the finality of litigation.
Weighing all of these factors within the circumstances of this case, I am not satisfied that the Court should exercise its discretion to grant the applicant an extension of time to file its notice of appeal.
Conclusion
For the reasons given above, I am not satisfied that the applicant has provided a reasonable explanation for its delay in filing the notice of appeal. Nor am I satisfied that the other factors relevant to the exercise of the Court’s discretion to grant an extension of time outweigh the absence of a reasonable explanation for the delay. Accordingly, the application for an extension of time is refused and the proceeding will be dismissed.
I request that the parties confer on the question of the costs. If the parties are unable to reach agreement on the terms of any costs order within 28 days of the date of this judgment, the proceeding will be listed for oral submissions on costs.
SCHEDULE OF PARTIES
| S ECI 2022 05216 | |
| BETWEEN: | |
| AUSTRALIAN RED HILL REAL ESTATE GROUP PTY LTD | Applicant |
| - v - | |
| MARINKO JELIC | First Respondent |
| MELTON CITY COUNCIL | Second Respondent |
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