Councillor Milvan Muto v The Secretary to the Department of Planning and Community Development

[2013] HCASL 159

COUNCILLOR MILVAN MUTO

v

THE SECRETARY TO THE DEPARTMENT OF PLANNING AND COMMUNITY DEVELOPMENT

[2013] HCASL 159
M50/2013

1. The applicant is a councillor, elected to serve on the Greater Shepparton City Council.  The respondent alleged that between December 2008 and July 2010, the applicant engaged in gross misconduct contrary to the Local Government Act 1989 (Vic) ("the Act") and sought orders for his disqualification.

2. The respondent unsuccessfully applied to the Victorian Civil and Administrative Tribunal ("the Tribunal") seeking an injunction to temporarily restrain the applicant from acting as councillor, pending the hearing of the application for his disqualification.  Prior to the final hearing, the parties entered into a written settlement and produced consent orders based on admissions by the applicant of 13 instances of misconduct.  The parties consented to the form of orders, save for the date on which the applicant would commence an agreed one‑month leave of absence.  On 4 March 2011, the Tribunal made the orders, as well as an order as to the starting date of the applicant's agreed leave of absence.  The applicant sought leave to appeal out of time against the Tribunal's orders.

3. On 12 April 2013, the Court of Appeal of the Supreme Court of Victoria (Nettle AP and Neave JA) granted the applicant leave to appeal and heard the appeal instanter.  The appeal to the Court of Appeal solely concerned the jurisdiction of the Tribunal to hear and determine the proceedings, even though the Tribunal member had made orders substantially in accordance with the consent orders produced by the parties.  The applicant relied on cl 46E(1) of Sched 1 to the Victorian Civil and Administrative Tribunal Act 1998 (Cth) ("the VCAT Act") (as it then stood) requiring applications under s 81E of the Act (as this was) to be heard by two persons, one of whom had local government experience.

4. The Court of Appeal dismissed the appeal, other than in respect of the order concerning the starting date of the applicant's leave of absence, being the single matter between the parties which remained for determination when the proceedings returned before the Tribunal.  The Court of Appeal found that under s 93 of the VCAT Act the President of the Tribunal, sitting alone, had jurisdiction to make orders giving effect to the parties' settlement.  The applicant seeks special leave to appeal to this Court against part of the orders made by the Court of Appeal. 

5. As the applicant does not have legal representation, the application falls to be dealt with under r 41.10 of the High Court Rules 2004.

6. The applicant's written submissions are directed to material which was advanced in the Court of Appeal rather than to the establishment of any error in the Court of Appeal's decision.  We are not persuaded that an appeal to this Court would have sufficient prospects of success to warrant a grant of special leave to appeal.

7. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

8          K.M. Hayne

9          9 October 2013

10        S.M. Crennan