Batagol & McGill v Monk & City of Port Phillip
[2000] VSC 48
•2 March 2000
SUPREME COURT OF VICTORIA
COMMON LAW DIVISION
VALUATION, COMPENSATION & PLANNING LIST
Not Restricted
No. 4878 of 1999
| BRANDON ARMON BATAGOL and PAUL CARRINGTON McGILL | Applicants |
| V | |
| JANE MONK (in her capacity as a Member of the Victorian Civil and Administrative Tribunal) | First Respondent |
| CITY OF PORT PHILLIP | Second Respondent |
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JUDGE: | Balmford, J. | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 February 2000 | |
DATE OF JUDGMENT: | 2 March 2000 | |
CASE MAY BE CITED AS: | Batagol & McGill v Monk & City of Port Phillip | |
MEDIA NEUTRAL CITATION: | [2000] VSC 48 | |
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PLANNING LAW – ADMINISTRATIVE LAW – Appeal from the Victorian Civil and Administrative Tribunal – Slip rule – Power of Tribunal to make a correction to an order on its own initiative – Procedural fairness – Requirement to give persons affected the opportunity to be heard.
Victorian Civil and Administrative Tribunal Act 1998 (Vic); ss 98, 119
Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 133 ALR 206
General Medical Council v Spackman [1943] AC 627
Kioa v West (1985) 159 CLR 550
L. Shaddock & Associates Pty Ltd v Parramatta City Council [No 2] (1983) 151 CLR 590
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APPEARANCES: | Counsel | Solicitors |
For the Applicants | Mr CJ Wren | Baker & McKenzie |
| For the Second Respondent | Mr NJ Tweedie | Best Hooper |
HER HONOUR:
The applicants, pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 1996 (“the Rules”), seek orders that the order (“the correction”) made on 16 February 1999 by the first respondent as a Member of the Victorian Civil and Administrative Tribunal (“the Tribunal”), expressed as a correction to a decision of the Administrative Appeals Tribunal (“the AAT”) made on 28 January 1998, be quashed and that the second respondent (“the Council”) be directed to issue a planning permit in accordance with the original order of the AAT.
There was no appearance for the first respondent, who indicated that she did not intend to take an active role in the proceeding, except as regards any question of costs, and that she would abide the decision of the Court.
The relevant facts appear from the two affidavits of Mr Brearley, the solicitor for the applicants. The applicants were at all relevant times until the making of the decision of 28 January 1998 the owners as tenants in common of the properties known as 14-18 Charles Street, St Kilda. After the making of that decision, the firstnamed applicant sold his half share in numbers 14-16 Charles Street to the wife of the secondnamed applicant, and the secondnamed applicant sold his half share in numbers 16A and 18 Charles Street to the firstnamed applicant.
On 12 December 1996 the applicants applied for a planning permit to construct three town houses on numbers 14, 16 and 16A Charles Street, leaving an existing house on number 18. The plans for each town house included stairs to a third storey, and an attic and sundeck on the third storey.
On 3 June 1997 the Council as responsible authority, in response to the application, issued a Notice of Decision to Grant a Permit pursuant to section 64 of the Planning & Environment Act 1987 (“the Planning Act”) for the construction of the three town houses on numbers 14, 16 and 16A Charles Street. The Notice indicated that the permit would be subject to certain conditions, including, as condition 1(a), “deletion of the third floor attics and the inclusion of hipped roofs on all new units to improve their relationship with the roofs on the abutting properties”. A Notice of Appeal against the decision to grant the permit was lodged by several objectors pursuant to section 82 of the Act. A Notice of Appeal against certain conditions of the permit, including condition 1(a), was lodged by the applicants pursuant to section 80 of the Act.
Both appeals were heard by the AAT, constituted by the first respondent. After extensive consideration of the issues and the material before it, the AAT ordered on 28 January 1998 that the objectors’ appeal be disallowed and that the permit be issued “subject to the conditions set out in the Responsible Authority’s Notice of Decision to Grant a Permit issued on 3rd of June 1997 except that;
A. Condition No. 1 shall be amended to read;
1.. . .
(a)Deletion of the third floor level attics.
.. . “
This decision was notified to the applicants and a permit for the construction of the three town houses was issued by the Council on 9 February 1998, the permit being subject to condition 1(a) which read “deletion of the third floor attics”, consistently with the decision of the AAT. The plans for construction of the town houses, in a form omitting the attics but retaining the sundecks and stairways on the third floor, were formally endorsed by the Council.
The construction of 14 Charles Street followed, and it was completed, including the sundeck and stairway at third floor level, but without an attic, at some date before 16 February 1999. Number 16 has been constructed and completed, but does not at this stage include a deck. Number 16A is currently under construction.
On 1 July 1998 the Victorian Civil and Administrative Tribunal Act 1998 (“the VCAT Act”) and the Tribunals and Licensing Authorities (Miscellaneous Amendments) Act 1998 came into force, effectively abolishing the AAT and replacing it with the Tribunal. Clause 10(1)(b) of Schedule 2 to the latter Act provides in effect that an order or decision of the AAT may be enforced in accordance with the VCAT Act as if it were an order of the Tribunal. It was not suggested that that provision did not empower the making of the correction by the Tribunal to the original order of the AAT, and in view of the conclusion I have reached in this matter it is not necessary for me to make any finding on that question.
On 16 February 1999 the Tribunal, constituted by the first respondent, referring to the decision of the AAT made on 28 January 1998, made the correction in the following terms:
The decision of the Tribunal is corrected by the addition, at the end of Condition 1(a), of the words:
“including associated attic features such as decks and stairways”.
In its reasons for decision the Tribunal indicated that it had received a letter from an officer of the planning department of the Council asking whether the Council’s endorsement of the plans had been in line with the decision of the Tribunal. After setting out part of that letter and referring to section 119 of the VCAT Act, the Tribunal stated:
The Tribunal’s intention, when directing that the third floor attics be removed was for all of the attic level including associated third floor features, such as decks, stairways etc, be [sic] removed. Accordingly I find that the lack of any reference to these associated features was an accidental omission on the part of the Tribunal. (Emphasis in the original.)
Mr Brearley deposed that no notice was given to the applicants of the contents of the letter from the Council prior to the making of the correction. The matter was conducted on both sides on the basis that that lack of notice meant that the applicants were not given the opportunity to make representations to the Tribunal as to why the correction should not be made. A copy of the correction was forwarded to the applicants on 16 February 1999, the day of its making.
On 25 February 1999 the Council wrote a letter to the applicants, the relevant part of which reads:
. . . a third floor balcony/deck has been constructed at 14 Charles Street, St. Kilda without having Planning Permit or endorsed plan approval.
You are requested to remove the aforementioned structure within 21 days from the date of this letter, failure to carry out this request will cause Council to take action either at the Magistrates Court or before the Victorian Civil and Administrative Tribunal.
Section 119 of the VCAT Act reads:
119.Correcting mistakes
(1)The Tribunal may correct an order made by it if the order contains¾
(a)a clerical mistake; or
(b)an error arising from an accidental slip or omission; or
(c)a material miscalculation of figures or a material mistake in the description of any person, thing or matter referred to in the order; or
(d)a defect of form.
(2)The correction may be made¾
(a)on the Tribunal’s own initiative; or
(b)on the application of a party in accordance with the rules.
It will be apparent from paragraph 11 above that in making the correction the Tribunal relied on paragraph 119(1)(b).
The relevant rules are Rules 4.06 and 4.17 of the Victorian Civil and Administrative Tribunal Rules 1988, which require the making of an application in writing and service on the other party within seven days after lodging. Although the making of the order arose from the letter from the Council referred to in paragraph 11 above, that letter did not constitute an “application of a party in accordance with the rules” in terms of section 119(2)(b), and thus the correction must be regarded as having been made “on the Tribunal’s own initiative” in terms of section 119(2)(a). Accordingly the rules have no application to this matter and there is no formal requirement for a written application or for service. Authorities cited to the contrary, such as Ninnis v Miller [1905] VLR 669 and Hatton v Harris [1892] AC 547, were decided under different legislation.
Section 119 effectively enacts the “slip rule”, to be found originally in the inherent jurisdiction of the Courts of Common Law and the Court of Chancery to correct any clerical mistake or error in a judgment or order which was the result of an accidental slip or omission. (See the judgment of McHugh JA in Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446 at 449.) The rule is now formalised in the statutes and rules governing most, if not all courts and tribunals, as for example in Order 36.07 of the Rules, which reads:
36.07. The Court may at any time correct a clerical mistake in a judgment or order or an error arising in a judgment or order from any accidental slip or omission.
Lockhart J, with whom Black CJ agreed (Lindgren J not commenting on the point), said in Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 133 ALR 206 at 212:
An exercise of the power of the court under the slip rule is ultimately to avoid injustice. This obvious purpose of the slip rule underlies a number of decisions of judges of this court and of other courts . . .
Mr Wren, for the applicants, submitted first, that there was no error in the original order arising from an accidental slip or omission, and accordingly the Tribunal did not have jurisdiction to make the order of 16 February 1999; and second, that there was a lack of procedural fairness in the making of the correction in that the applicants had not been given notice of the letter from the Council which led to the correction being made, or of the Tribunal’s intention to make the correction, and accordingly had not been given the opportunity to be heard on the question of whether the correction should be made. It is convenient to deal first with the second submission, as to which Mr Wren relied on Kioa v West (1985) 159 CLR 550 where Mason J said at 582-5:
It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it . . . .
…
The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. . . .
Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction f the statute. . . . What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting . . .
In this respect the expression “procedural fairness” more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations. . . .
When the doctrine of natural justice or the duty to act fairly in its application to administrative decision-making is so understood, the need for a strong manifestation of contrary statutory intention in order for it to be excluded becomes apparent. The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case?
Section 98(1)(a) of the VCAT Act specifically provides that the Tribunal is bound by the rules of natural justice. Section 98(4) reads:
Sub-section 1(a) does not apply to the extent that this Act or an enabling enactment authorises, whether expressly or by implication, a departure from the rules of natural justice.
The relevant “enabling enactment” (as to which see the definition in section 3 of the VCAT Act) is the Planning Act. I do not accept the submission of Mr Tweedie, for the respondent, that section 119(2)(a) of the VCAT Act, empowering the Tribunal to make a correction on its own initiative, authorises a departure from the rules of natural justice. That provision relates purely to the procedure by which corrections may be made, and enables the Tribunal to initiate the making of a correction without being dependent on a party to do so. It is certainly not the “strong manifestation of contrary statutory intention” referred to by Mason J. Mr Tweedie did not direct me to any other provision of the VCAT Act or the Planning Act which could be so described. Accordingly, I find that in making the correction, the Tribunal was bound by the rules of natural justice, or in other words, in terms of the passages cited above from the judgment of Mason J in Kioa v West, was bound to act fairly, or to accord procedural fairness. The relevant rule of procedural fairness is the audi alteram partem rule, providing for a right to a fair hearing.
In L. Shaddock & Associates Pty Ltd v Parramatta City Council [No 2] (1983) 151 CLR 590 at 597 the High Court, constituted by Mason ACJ, Wilson and Deane JJ, said:
. . . we would observe that an order under the slip rule is not available as a matter of course. There is a discretion in the court to refuse an order if something has intervened which would render it inexpedient or inequitable that it be made (see Tak Ming Co Ltd v Yee Sang Metal Supplies Co [1973] 1 WLR 300 at p 306; and the cases there cited). In the present case, there was considerable delay in filing the notice of motion. The Court’s decision was given on 28 October 1981 and the judgment entered at the end of November 1981. The motion to amend the order is dated 22 July 1982. The general principle in support of finality in litigation together with the fact that a party against whom judgment in a money sum is entered is entitled to regard that judgment as finally determining the extent of his liability combine to stress the importance of prompt action under the slip rule. The seriousness of the delay in this case is, however, minimized by the fact that the applicants promptly made known to the Council their claim for interest and the delay in making the application to the Court is, to no small extent, explained by the content of the correspondence between the parties during the months prior to the filing of the application.
In the present case, the delay between the making of the original order and the correction was more than twelve months. It has not been suggested that there was in that period (as there was in Shaddock) any communication on the subject between the Tribunal and the applicants. The applicants had incurred expenditure in reliance on the permit in accordance with its terms. A party who receives from the responsible authority a permit in proper form to construct a building is not merely entitled to proceed with the construction of that building; in its own interests it is desirable that it do so.
The permit was issued by the responsible authority on 9 February 1998, in reliance on the decision of the AAT, and provides that it will expire if:
(a) the development and use are not started within 2 years of the date of this permit;
(b) The development is not completed within 2 years of the date of commencement of works.
The Council reserved in the permit a power to extend those periods. However, the reservation of that discretionary power in the Council does not alter the fact that the recipient of a permit for development is intended by the legislature to proceed with the development within what might be described as a reasonable time. Section 68 of the Planning Act provided at all material times that a permit for the development of land expires if the development does not start within the time specified in the permit, or is not completed within the time specified in the permit, or, if no time is specified, within two years after the issue of the permit. Thus it was in the interests of the applicants to proceed with the development on receipt of the permit, and they did so.
As Lockhart J, with the agreement of Black CJ and Lindgren J, pointed out in Elyard Corporation at 211, the approach of the High Court in Shaddock:
. . . demonstrates the adoption by it of the view that, when the court makes an order under the slip rule, that order has the effect of correcting the slip in the earlier order, and operates from the date of the earlier order. The legal operation of the later order is simply to correct a previous mistake. Once the later order speaks, the additional words are included in the earlier order; and the earlier order continues as the relevant and operative order.
It was, of course, on this basis that the Council wrote to the applicants the letter of 25 February 1999, the material parts of which are set out in paragraph 13 above. The correction had the effect that work done by the applicants pursuant to the permit, which was legal at the time when the work was done, had become illegal, and that illegality dated back to the date of the making of the original order of the AAT.
The discretionary nature, enunciated by the High Court in Shaddock, of the power to make a correction under the slip rule renders it important that in appropriate cases notice should be given to any party likely to be affected by its operation. This is not to say that in all cases a court or tribunal wishing to correct an order made by it is required to give notice. Every case must turn on its own facts and circumstances (and see the passages cited from Kioa v West in paragraph 18 above). But it should always be remembered that the purpose of the rule is the avoidance of injustice (see paragraph 17 above), and therefore in its exercise a court or tribunal must be alert not to introduce a further injustice. In this case, the holding of a hearing would have enabled the Tribunal to consider the position of the applicants as well as the position of the objectors who had appealed to the AAT against the decision of the Council to grant a permit.
Mr Tweedie submitted that the inclusion of an extract from the Council’s letter in the Tribunal’s reasons for making the correction (see paragraph 11 above) showed that the Tribunal was aware of the events since the making of the original order, including the expenditure by the appellants on the construction of the sundeck on Number 14 Charles Street. He referred to the judgment of Barwick CJ in Kentucky Fried Chicken v Gantidis 140 CLR 675 at 679-680 as authority for the proposition that failure to mention a relevant matter in reasons for a decision did not necessarily mean that that matter had not been taken into account. Accordingly, he submitted, it could be assumed that the Tribunal had taken those events into account in reaching its decision, and therefore that the provision of a hearing would not have made any difference to the result.
In response to that submission Mr Wren referred me to Wade & Forsyth, Administrative Law 7th edition 1994 at 526-528 under the heading “Where a fair hearing ‘would make no difference’”. The learned authors cite a passage from the speech of Lord Wright in General Medical Council v Spackman [1943] AC 627 at 644:
If the principles of natural justice are violated in respect of any decision it is, indeed, immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to be no decision.
The authors continue:
This question profoundly affected the course of Ridge v Baldwin [1964] AC 40. The argument favoured by the lower courts, and in Lord Evershed’s dissenting speech, was that natural justice need not be enforced in the absence of a miscarriage of justice or some probable effect on the result. The House of Lords rejected this reasoning decisively. . . .
They go on to refer to later cases in which that reasoning has “made a reappearance”, but none of those cases, in my view, is relevant to the question before me.
On the same point, the learned authors of Aronson & Dyer, Judicial Review of Administrative Action 1996 conclude at 489 that except in rare cases, such as where the plaintiff’s counsel effectively concedes that a breach of natural justice made no difference to the result:
. . . the effect of a breach of natural justice on the ultimate decision should not, in our view, be treated as having any bearing on the availability of a remedy or the exercise of the court’s discretion to refuse one. However, we concede that this view is not universally accepted.
They cite authorities on each side of the question.
In any case, I am not satisfied that the holding of a hearing would have made no difference to the decision of the Tribunal. At a hearing, the Tribunal could have been advised of the expenditure which had been incurred by the applicants in reliance on the grant of the permit, the change in ownership of the properties described in paragraph 3 above, and any other matters which the applicants considered relevant to the exercise of what the High Court in Shaddock found to be the Tribunal’s discretion under the slip rule. In addition, submissions of law could have been made as to the exercise of that discretion. The Tribunal’s awareness of certain specific relevant facts is not significant in the overall context.
For the reasons given, I find that in all the circumstances of this case, notably the delay of twelve months since the making of the original order and the actions of the applicants during that period in reliance on the permit which was authorised by that order, there was a lack of procedural fairness in the making of the correction without notice being given to the applicants of the Council’s letter which initiated the making of the correction, and without affording them the opportunity to be heard in regard to the Tribunal’s intention to make the correction. Accordingly, there will be an order in the nature of certiorari that the order of the Tribunal made on 16 February 1999, expressed as a correction to a decision of the AAT made on 28 January 1998, be quashed. Counsel may wish to make submissions as to costs.
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