Dimitriou v Glen Eira City Council

Do Not Send for Reporting
IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2012 6667

PETA MARIE DIMITRIOU	Plaintiff
v
GLEN EIRA CITY COUNCIL	First Defendant
- and -
VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL	Second Defendant

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JUDGE:	LANSDOWNE AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	24 June 2013
DATE OF JUDGMENT:	18 July 2013
CASE MAY BE CITED AS:	Dimitriou v Glen Eira City Council and anor
MEDIUM NEUTRAL CITATION:	[2013] VSC 359

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JUDICIAL REVIEW – Review sought of the VCAT’s decision regarding costs – whether denial of natural justice not to afford plaintiff a further opportunity to put substantive submissions on costs following refusal of her application for access to the other party’s files – in particular circumstances of this case held to be denial – denial of natural justice conceded to be jurisdictional error - error of law on the face of the record – plaintiff did not participate in hearing of the application to amend a permit – Tribunal found she opposed the application - no evidence on which Tribunal could so find – party may choose not to participate in an application to amend a permit - accordingly conclusion that plaintiff opposed the application by non participation also unreasonable – discretionary relief under o 56 not refused although matters could have been raised on appeal pursuant to s 148 of the VCAT Act – Order 56 of the Supreme Court (General Civil Procedure) Rules 2005 – Victorian Civil Administration and Tribunal Act 1998 ss 98,109 and 148 – Planning and Environment Act 1987 ss 87-90.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T. Margetts SC	Noble Lawyers
For the First Defendant	Mr P. Connor	Hoeys Lawyers

HER HONOUR:

Introduction

This proceeding seeks orders in the nature of certiorari pursuant to o 56 of the Supreme Court (General Civil Procedure) Rules 2005 to quash a decision of Member Philip Martin of the Victorian Civil and Administrative Tribunal (“the Tribunal”) made 26 October 2012. By that decision, the Tribunal ordered the plaintiff to pay the first defendant’s costs of an application by the first defendant in the Planning and Environment List of the Tribunal to amend a planning permit. The permit had been granted by the first defendant to the plaintiff at the direction of the Tribunal in earlier proceedings. It relates to the use and development of the plaintiff’s land at the rear of 46 Kambrook Road, Caulfield North for the purpose of student housing.

The originating motion was filed 29 November 2012. It was referred to me for hearing by Justice Williams and was heard on 24 June 2013. The originating motion contains four grounds. At the hearing, counsel for the plaintiff indicated that the plaintiff no longer presses Grounds 1 and 3. Counsel for the plaintiff also proposed that, in the event the plaintiff was successful and the decision in question quashed, the matter be remitted to the Tribunal for hearing and determination of the first defendant’s costs application according to law. The plaintiff did not seek to formally amend the originating motion to seek that relief on the basis that it fell within the general relief sought in paragraph 5 “such further or other orders as the Court deems just and reasonable”. The first defendant did not oppose that additional relief in the event that the plaintiff is successful, and did not require formal amendment of the originating motion.

Facts

There have been a number of proceedings in the Tribunal relating to the use and development of the land for the purpose of student housing. The plaintiff or her agent lodged an application for a planning permit with the first defendant, the local council, Glen Eira City Council (“the Council”) to use and develop the land for student housing. The Council refused the permit, and the plaintiff, through her agent The Silver Arc (apparently an architectural or drafting firm) sought review of that refusal by the Tribunal pursuant to s 77 of the Planning and Environment Act 1987 (“P&E Act”). There is some disparity in the evidence as to when the plaintiff first made application for a permit, and in particular whether it was before or after enforcement proceedings had been instituted by the Council, but it is of no moment to this application.[1] It is not disputed that prior to the determination of the review, in fact at least by February 2010, the land was already being used for student housing although no permit had been issued.
[1]Compare the first defendant’s chronology, apparently drawn from the decision of the Tribunal dated 27 October 2010, and the account given in the covering letter to the first defendant’s application to amend the permit.

The review and two further applications, one the enforcement proceeding issued by Council and the other a proceeding pursuant to s 149A of the P& E Act, came before Member Martin for hearing in June and October 2010. By order and reasons published 27 October 2010[2] the Tribunal indicated that while it did not support the proposed use and development of the land (in fact already its actual use) in its current form, if certain matters were addressed, the Tribunal would direct that a permit issue.
[2]The Silver Arc v Glen Eira CC and ors [2010] VCAT 1744.

The permit applicant subsequently filed and served amended plans in response to this initial decision. The matter came back before the Tribunal and by orders and reasons dated 2 February 2011 the Tribunal (again constituted by Mr Martin) directed that a permit issue for the use and development of the land for the purposes of student accommodation. Annexed to the decision of the Tribunal is a copy of the permit required to be issued. In accordance with the Tribunal decision the Council issued a planning permit in those identical terms on 14 February 2011.

There were then subsequent enforcement proceedings between the Council as applicant and the current plaintiff and her husband Mr Chris Dimitriou as respondents which resulted in consent orders made 5 May 2011 by the Tribunal (constituted by Mr Martin) without hearing. The consent orders required the current plaintiff and her husband to lodge amended plans with the Council for endorsement in accordance with Condition 1 of the planning permit; to bring the layout of the site and size, design and location of buildings and works into compliance with those endorsed plans and to attend to other matters generally in accordance with the permit.

Subsequently, the first defendant commenced the proceeding which ultimately led to the costs order in question in these proceedings. By application dated 2 March 2012 the Council made application to the Tribunal pursuant to s 87 of the P&E Act to amend the permit as issued. The application was accompanied by a detailed covering letter setting out the reasons why, in view of the Council, amendment was required. The Council sought amendment on two grounds in that covering letter:
· First, on the ground of a material mistake pursuant to s 87(1)(c), the material mistake being that the conditions of the planning permit failed to take into account that the permission sought was retrospective. The letter notes that:
The Tribunal directed a permit issue with conditions that did not take into account the fact that the use had already commenced.[3]
· Second, on the ground of a substantial failure to comply with conditions pursuant to s 87(1)(b). This was expressed to be an alternative ground. The Council asserted that in a number of respects the now plaintiff had not complied with the permit conditions and despite requests by the Council had declined to bring the development into compliance. The purpose of amendment in this respect was expressed in these words:
The amendment of the conditions will enable our client to take enforcement action and/or seek a cancellation of the permit by a set date without the uncertainty of when certain documents were required to be provided.[4]
[3]Letter dated 2 March 2012 from Hoeys Lawyers to the VCAT being Exhibit DJN-1 to the affidavit of Darren John Noble sworn 29 November 2012, on the fifth page.
[4]Ibid, on the seventh page.
The Council sought that the permit conditions be amended so as to delete a time condition which was expressed generally in a number of conditions as “before (or “prior to”) the commencement of the use” and replace it with specified time periods dating from the issue of the amended permit.

The application and covering letter were served on the plaintiff and her husband separately, each by letters dated 2 March 2012. Subsequently, by letter dated 9 March 2012, the Council also served the plaintiff and Mr Dimitriou with the standard Tribunal forms, Form A headed “Information” and Form B “Statement of Grounds”. There is no contest that the application and accompanying documents were appropriately served on the plaintiff.

Neither the application nor the covering letter contained an application by the Council for its costs of the application to amend the permit. Nor does Form A contain any information in relation to the possibility of such an order. That form is headed “Information” and “Planning and Environment List”. The inserted details contain the address of the land and the VCAT reference. The pro forma text contains the following statements which are relevant to these proceedings:

Statement of grounds
If you wish (a) to contest the application, (b) to have an opportunity to be heard by the Tribunal at the hearing of the application, or (c) to make a written submission you must within 14 days of service of this notice serve a copy of the Statement of Grounds on which you intend to rely at the hearing and/or a copy of your written submission on the following. [There follows a list of the persons to be notified including the Tribunal, the “Applicant” (being the Council), the owner and occupiers of the land (“Respondents”), and any “Persons Affected” as defined by reference to the application, being in this instance being Mr Chris Dimitriou only.]
The attached Statement of Grounds form should assist you. The Statement should provide sufficient information so that the issues you intend to raise can be clearly identified. Normally VCAT does not have copies of the objections made to the Responsible Authority so it should not be assumed that VCAT is aware of any statement you may have made previously.
Please note that if you do not within the 14 days file a Statement of Grounds with the Tribunal and/or do not send a copy of that Statement of Grounds to the Requestor and the Responsible Authority, the Tribunal must not allow you to be heard in the proceeding unless the Tribunal has obtained and considered the views of the Requestor and the Responsible Authority on whether or not you should be heard. (Clause 56 Schedule 1(4) of the Act.)
To: ‘Persons affected’ – if you do not lodge a Statement of Grounds it will be assumed that you do not with to take part in the Application and will not receive any further notification or advice regarding the proceedings.
…
If you cannot attend the Hearing – if you are unable to attend the hearing in person or through a representative, please inform VCAT in writing prior to the hearing date. If you are a Respondent please note an order may be made against you in your absence unless you have applied to VCAT for an adjournment and VCAT has ordered the hearing be adjourned.

The proforma Form B, Statement of Grounds, contains the following pro forma text of relevance in this application:

I wish to
⃞ contest the application,
⃞ be heard in relation to the Application and/or,
⃞ make a written submission in relation to the Application.
⃞ consent to amendment of the permit as requested.
(Tick whichever is applicable.)

Please provide estimate of time required to present your submission to VCAT – hours – mins
I intend to rely on the following grounds at the hearing of the application:
[space for summary of grounds]

Neither the plaintiff nor her husband filed nor served any Statement of Grounds within fourteen days of service of the application. The application came before the Tribunal on 1 June 2012 for directions. The solicitor for the Council attended. There was no appearance for the respondent. The Senior Member presiding listed the matter for a two hour hearing on Friday, 3 August 2012 and ordered that:

By no later than 15 June 2012 the respondent must serve on the applicant and file with the Tribunal a statement of grounds on which the respondent intends to rely at the hearing.

The application to amend the permit was heard by Member Martin on 3 August 2012. The Council provided written submissions in support of the application dated 2 August 2012. Those submissions stated:

The purpose of seeking the requested amendments is to make it absolutely clear and precise as to when a number of the obligations contained in the permit must be met. As the permit holder has not complied with a number of the permit conditions, the amendments will provide a certain and clear time frame for compliance.[5]

[5]Submissions on behalf of the Responsible Authority dated 2 August 2012, being JFH-9 to the affidavit of John Francis Hoey sworn 20 March 2013, at [4].

The submissions also stated by way of purpose:

As suggested, the amendments are minor and relate to timing issues. The Responsible Authority has little confidence in the current permit operator complying with the law and seeks to make it very clear (for all parties and also for enforcement purposes) as to when certain permit requirements must be met.[6]

[6]Ibid at [9].

The submissions indicated that some of the foreshadowed amendments were no longer pursued, leaving proposed amendments to conditions 2, 3, 4 and 11 of the permit. Each of those proposed amendments sought to replace the words “prior to the commencement of the use” (conditions 2 and 11) or “before the commencement of the use” (conditions 3 and 4) with a specific time frame. The proposed time frame in respect of all of the conditions to be amended was within 60 days from the date of issue of the amended permit.

The submissions also referred briefly to the other ground for amendment advanced in the covering letter to the application, being material mistake in relation to the grant of the permit. In addition, the submissions flagged a third basis for the amendment, being a material change in circumstances since the grant of the permit. That changed circumstance was said to be that “the permit was issued 18 months ago and the various documents and requirements called up by the relevant permit conditions have not been provided or executed”.[7]
[7]Ibid, at [33(c)].

The reference to a material mistake in the submissions is substantially briefer than that ground as foreshadowed in the covering letter to the application. The reference is essentially glancing and is expressed this way:

This is constituted by the usual permit wording linked to “commencement” not being suitable or having any effect in this case. This suggested material mistake is not a criticism of the Tribunal. It should be expected that permit operators will comply with the clear spirit of permit requirements.[8]

[8]Ibid at [33(b)].

Significantly, the written submissions are also the first occasion on which the Council made application for the costs of the application. Paragraphs 38 to 43 of the submissions make that application. The basis for the award of costs was expressed in these words:

This application for an amendment to the permit has arisen due to the uncertainty as to when a number of the obligations contained in the permit must be met and as a result of the permit holder’s failure and disregard to comply with the permit’s conditions. Council has a positive duty under s 14(a) of the Planning and Environment Act 1987 to administer and enforce the planning scheme. It is submitted that the requested amendments will assist it in doing so. Accordingly, it is submitted that in bringing these proceedings, the Responsible Authority is acting in accordance with its statutory duties.
…
In the absence of any legitimate reason for non-compliance with the permit’s conditions, it is submitted that it is the Responsible Authority’s duty to seek an amendment to the Permit. It is fair that the costs of this proceeding should be borne by Ms Dimitriou.[9]

[9]Ibid, at [40] and[ 43].

It is common ground that a copy of these submissions was not at the time provided to the current plaintiff, the respondent to the application, who did not attend the hearing.

The reasons of the Tribunal dated 14 August 2012 (“Amendment Reasons”)[10] show that the Tribunal was concerned that there was no appearance by or on behalf of the respondent at the hearing, and went to considerable lengths to ascertain if she or her husband wished to appear. The Tribunal requested the solicitor for the Council to telephone Ms Dimitriou or her lawyers “with a view to seeking to understand why there was no appearance on behalf of the owner”.[11] The Tribunal stood the hearing down for that purpose. The solicitor for the Council reported back that he had made contact with a lawyer for the respondent (being her solicitor in other proceedings) who in turn said he would endeavour to contact the respondent or her husband. Subsequently, the solicitor for the Council spoke to Mr Dimitriou. The Reasons report that the Tribunal was informed that Mr Dimitriou had said he understood the case was being adjourned and could not attend. In fact, it is common ground between the parties in this proceeding that there was no application for adjournment.
[10]Glen Eira City Council v Dimitriou, VCAT Reference P658/2012, unreported reasons and orders of Member Martin dated 14 August 2012, being Exhibit DJN-3 to the affidavit of Darren John Noble sworn 29 November 2012.
[11]Ibid at [12].

The Amendment Reasons record that the Tribunal then satisfied itself that service of the application had been effected and determined to proceed. The Tribunal granted the application for amendment in the terms sought. The Amendment Reasons record that the Council sought costs and that the Tribunal determined to order any costs application to be made in writing with an opportunity for the respondent to make submissions. The orders made on 14 August 2012 provided in relation to costs as follows:

4.By no later than Friday 17 August 2012, the Responsible Authority must lodge with the Tribunal and serve on the Respondent any costs claim against the Respondent. Any such claim must indicate the quantum of costs claimed, on what basis a costs order is asserted to be fair and reasonable, an overview of the nature of the work involved and whether the Responsible Authority is seeking a full indemnity or a party/party costs order.
5.Upon receipt of any such costs claim, the Respondent will then have the opportunity over the following 21 days to lodge with the Tribunal and copy to the Responsible Authority any written grounds in response.
6.Unless the Tribunal in its discretion considers a further hearing to be required, the Tribunal anticipates then dealing with any costs application “on the papers”.

In fact, the Council made its application for costs in writing before these orders and the Amendment Reasons were published on 14 August 2012. The Council made application in costs submissions dated 9 August 2012 for an order that the respondent, the current plaintiff, be ordered to pay the Council the amount of $7,783.33, on the basis that this had been calculated as two‑thirds of the applicant’s actual costs (totalling $11,675) of the application. This application by way of written submissions was sent to the plaintiff by letter dated 9 August 2012.

The plaintiff did not file and serve any response to the costs application within the specified time frame. On 9 October 2012 at the direction of the Tribunal (Member Martin) an administrative officer at the Tribunal telephoned the solicitors for the plaintiff to enquire if any costs response was to be made. By letter dated 12 October 2012 the current solicitors for the plaintiff wrote to the Tribunal noting the costs application and “that the Tribunal is currently awaiting our client submissions in reply to the Applicant’s Cost Submissions dated 9 August 2012”. The letter continued:

While it is our client’s position that the Applicant’s application for costs is misconceived, our client also wishes to make submissions as to quantum, as the amount of the costs (i.e. the sum of $11,675) is grossly excessive and no proper justification for such costs has been provided.[12]

[12]Letter dated 12 October 2012 from Noble Lawyers to the VCAT being Exhibit DJN-4 to the affidavit of Darren John Noble sworn 29 November 2012.

The letter sought production of the Council’s practitioners’ files to justify their costs, stating: “Our client is unable to properly make submissions as to the costs claimed” without the inspection of those files.

The final substantive paragraph of the letter reads as follows:

In the circumstances, we request that the Tribunal make an Order that the Applicant, its counsel (both Hoeys Lawyers and its barrister, Mr Paul Connor) produce to the Respondent’s solicitors, all files and documents relating to the costs claimed against the Respondent detailed in the tax invoice attached to the Applicant’s Costs Submissions dated 9 August 2012, within 7 days and that the Respondent file and serve its submissions 14 days thereafter.

The solicitors for the Council responded to this request by letter dated 16 October 2012 to the Tribunal, copied to the solicitors for the plaintiff. That response asserted that the letter from Noble Lawyers “is not in fact a Costs Submission and the cost submissions of the Respondent have yet to be prepared”. The letter asserted:

It is further noted that the letter from Noble Lawyers of 12 October 2012 makes no indication of when any Costs Submission in Reply is to be filed.

Accordingly, as no Costs Submission in Reply has been filed and served with 21 days as required by Member Martin’s Orders of 14 August 2012, nor is there any timeframe within which a Costs Submission in Reply is likely to be prepared, it is submitted the Tribunal ought to disregard (or at the very least, attach minimal weight to) the objection to the Responsible Authority’s claim for costs due to the failure of the Respondent to comply with the Orders of the Tribunal.[13]

[13]Letter dated 16 October 2012 from Hoeys Lawyers to the VCAT being Exhibit DJN-5.

The response from the solicitors for the Council went on to deny that the Council costs were excessive; opposed the request for production of files on the basis that the solicitors’ files, together with those of counsel, are protected by legal professional privilege; and concluded:

The Responsible Authority respectfully requests the Tribunal to refuse the Respondent’s request for access to the files of its solicitors and counsel.
We await the decision of the Tribunal in respect to our client’s application for costs.

The Tribunal (Member Martin) determined the costs application in chambers. By order dated 26 October 2012 he ordered:

The Respondent must make an $11,675 contribution towards the costs incurred by the Applicant/Responsible Authority in this proceeding, to be paid within sixty (60) days of the date of these orders.

That order and the accompanying reasons (“the Costs Reasons”) are the subject of this proceeding. To understand the Costs Reasons it is first necessary to consider the Amendment Reasons.

Amendment Reasons

The Amendment Reasons turn on s 87 of the P & E Act, which relevantly provides as follows:

87What are the grounds for cancellation or amendment of permits?
(1)The Tribunal may cancel or amend any permit if it considers that there has been—
…
(b)any substantial failure to comply with the conditions of the permit; or
(c)any material mistake in relation to the grant of the permit; or
(d)any material change of circumstances which has occurred since the grant of the permit; or
…

(3)The Tribunal may cancel or amend a permit at the request of—
(a)the responsible authority; or
(b)any person under section 89; or
(c)a referral authority; or
(d)the owner or occupier of the land concerned; or
(e)any person who is entitled to use or develop the land concerned.

…

(6)Without limiting the powers of the Tribunal, the Tribunal may, under this section, cancel or amend a permit that has been issued at its direction.

The powers conferred on the Tribunal by that section are relevantly qualified by ss 88, 89 and 90 as follows:

88What are the limits on the power to cancel or amend a permit?
The power to cancel or amend a permit under section 87 may be exercised—
(a)if the permit relates to the construction of buildings or the carrying out of other works, at any time before those operations have been completed; or
(b)if the permit relates to any other development of land, at any time before that development is substantially carried out; or
(c)at any time, if the permit relates to the use of land.

89Request for cancellation or amendment
…
(3)The Tribunal may refuse to consider a request under … section 87 unless it is satisfied that the request has been made as soon as practicable after the person making it had notice of the facts relied upon in support of the request.

90Hearing by Tribunal
(1)The Tribunal must give the following persons a reasonable opportunity to be heard at the hearing of any request—
(a)the responsible authority;
(b)the owner and the occupier of the land concerned;
(c)any person who asked for the cancellation or amendment of the permit under section 87;
(d)the Minister;
(e)any person who asked for the amendment of the permit under section 87A;
(f)any relevant referral authority.

(2)The Tribunal may give any other person who appears to it to have a material interest in the outcome of the request an opportunity to be heard at the hearing of the request.

The Amendment Reasons follow the approach taken by the applicant Council in its written and, apparently, oral submissions. That is, the Tribunal granted the application substantially on the basis of failure by the owner of the land, the then respondent now plaintiff, to comply with the permit conditions. The Tribunal noted that the Council relied on s 87(1) (b) (substantial failure to comply with permit conditions); s 87(1)(c) (material mistake in relation to the grant of the permit); and s 87(1)(d) (material change in circumstances) and held:

While I accept that a substantial case has been made out under each of these three heads, as a minimum I am satisfied that the sworn evidence presented to me at the hearing regarding the owner’s failure to:

· carry out the necessary works to bring the “as built” building into compliance with what was approved by the Tribunal in the various Tribunal orders; and

· otherwise satisfy the necessary works/further steps required by the contentious permit conditions 2,3, 4 and 11

in each case constitutes a “substantial failure to comply with the permit conditions” pursuant to Section 87 (1)(b) and also a “material change in circumstances since the grant of the permit” as per Section 87(1)(d).[14]

[14]Amendment Reasons at [25].

Earlier in the Amendment Reasons the Tribunal noted that:

in addition, some doubt has emerged regarding (the drafting of the time conditions)…That is to say, …some uncertainty has arisen as to how (these conditions) should be interpreted in practice.[15]

[15]Ibid, at [7].

The Tribunal returned to this issue when considering s 89(3) of the P & E Act (the obligation to make the application to amend as soon as practicable):

While this test would otherwise have been more challenging for Council to satisfy, I acknowledge that there was over the intervening period some uncertainty (in terms of the wording of the relevant permit conditions) whether or not the owner was in fact already in breach of the requirements of the relevant permit conditions. Following this approach, I accept that it is reasonable that it was only after some time has passed that Council has come to the view that the requested amendments to the relevant permit conditions should be made, to put the practical operation of these conditions beyond debate/doubt.[16]

[16]Ibid, at [27].

The Tribunal further described the amendments as being of a “housekeeping” nature, which did not “impose any new obligations/burden on the owner in terms of the substance of the actions/works which the owner must carry out” but were to “put beyond doubt having a clear and precise time frame for the owner to comply with conditions 2, 3, 4 and 11 of the permit” and in that regard cited authority to the effect that conditions on a permit “should be clear and specific in their terms”.[17]
[17]Ibid, at [28]-[29].

In other words, while the Tribunal acknowledged that the permit conditions were not sufficiently precise without amendment, it based its decision to allow the proposed amendments on the default of the permit holder, rather than mistake in the grant of the permit. Counsel for the plaintiff disputes that non compliance was a proper reason for amendment, given that the permit conditions were vague and uncertain and required amendment for that reason alone. Further, counsel for the plaintiff contends that given the lack of precision as to time in the permit conditions, those conditions were unenforceable, and so there could not have been any relevant non compliance with them prior to amendment. Interesting as this proposition is, there was, however, no appeal by the plaintiff against, or other challenge to, the substantive amendment decision.

As noted earlier, the Amendment Reasons also show that the Tribunal was very concerned that there was no appearance by or on behalf of the then respondent now plaintiff. The Amendment Reasons also record consideration by the Tribunal as to whether or not the hearing should be adjourned, and its determination that it should not be, in part because “no reasonable excuse has been provided by Ms Dimitriou for her non- attendance at the hearing” and the prejudice that adjournment would occasion the Council. The Reasons record that the Tribunal “could see no reasonable basis on which the hearing could be adjourned, despite the absence of the owner.”[18]
[18]Ibid, at [15].

At the time of that hearing, the Tribunal had been told that Mr Dimitriou thought the hearing had been adjourned, and so may, perhaps, have considered that to be an application for adjournment. As noted, it is common ground there had in fact been no application for adjournment, and there is no complaint by the plaintiff that the hearing proceeded.

The Tribunal returned to this issue when recording its conclusion that s 90(1)(b) of the P & E Act (the obligation on the Tribunal to afford the owner a reasonable opportunity to be heard) was satisfied in these words:

The owner Ms Dimitriou did have a reasonable opportunity to be heard for the purposes of Section 90(b) (sic) of the Act. The evidence indicates that notice of the 3 August 2012 hearing was properly served on the owner and the Tribunal in my view bent over backwards at the beginning of that hearing to make contact with the owner or her lawyer/husband to check if there was still any chance the owner could attend the hearing.[19]

[19]Ibid, at [27].

It is against this background that the determination of the Council’s application for costs falls to be considered.

Costs Reasons

The Costs Reasons commence by reciting the historical background including the non appearance by the respondent owner, now plaintiff, at the amendment hearing in these words:

Despite the Tribunal standing the hearing down to enable Council to make enquiries regarding the whereabouts of the Respondent, the practical outcome was that there was still no appearance by the Respondent and in the final result I ruled that there was no reasonable basis for adjourning the hearing (hence I allowed Council to present its case to me).[20]

[20]Glen Eira City Council v Dimitriou, VCAT Ref No P658/2012, unreported reasons and orders dated 26 October 2012, being DJN-6 to the affidavit of Darren John Noble sworn 29 November 2012 at [6].

The Costs Reasons then record that no response to the Council’s Costs Submissions had been received in the time frame specified in the earlier orders, and stated:

As a courtesy to the Respondent, I arranged for further enquiries to be made by telephone by a Tribunal staff member, to establish whether or not any written response would be provided to the costs claim on behalf of the respondent.[21]

[21]Ibid, at [12].

The Costs Reasons next summarise the letter from the solicitors for the plaintiff and the response from the solicitors for the Council and turned to the request made by the solicitors for the plaintiff for access to the practitioner files. The Tribunal refused that request. There is no longer any challenge made in these proceedings to that aspect of the decision.

The Tribunal added that in addition to the request for discovery failing on its merits, it was inappropriate.

In any case, the Noble Lawyers letter of 12 October 2012 is in my view misconceived, in the sense that the opportunity for the Respondent to respond to the costs claim was clearly set out in orders 4 to 6 of my primary orders in this proceeding dated 14 August 2012.

(the Reasons then set out order 5 made 14 August 2012)

I see it as quite clear from order 5 that the Respondent simply had the opportunity to provide the Tribunal with written submissions providing any arguments which the Respondent wished to rely upon, in opposing the Tribunal making any costs order by (sic) the Council. The point here is that order 5 does not allow for any ongoing process along the lines of “discovery” or “file inspection”. It simply does no more or less than allowing the Respondent the chance to make written submissions contesting why any costs claim should be made.

My understanding is that the process set out at orders 4 to 6 for dealing with the costs claim is entirely consistent with the process commonly used by the Tribunal, in dealing with a costs claim arising in the Planning and Environment List. Indeed, it would be quite unworkable and inappropriate for the Tribunal to allow further considerable delays and expense to arise by way of a “discovery”/”inspection of file” process to be allowed as part of the dealing with a costs claim in this type of Tribunal proceedings. [22]

[22]Ibid, at [19] -[21], footnote omitted.

The Tribunal then immediately determined the merits of the costs application. By way of explanation for that course, the Costs Reasons state:

For the reasons set out above, I am satisfied that there is no reasonable basis for the Tribunal to defer making its ruling on the costs claim. Rather, I consider it fair and appropriate that I simply take what I can from the Noble Lawyers letter of 12 October 2012, and now proceed to making my ruling. I note that the Noble Lawyers’ letter at least indicates that the Respondent is both contesting the costs claim per se and considers the quantum of costs claim to be grossly excessive.[23]

[23]Ibid, at [23].

The plaintiff contends that in view of the indication in the letter from the plaintiff’s solicitors that they did wish to put substantive submissions in response, the Tribunal should have first advised the plaintiff of its determination of the discovery/inspection application and then afforded the plaintiff a further, even if brief, opportunity to put substantive submissions. I will return to this shortly.

The Costs Reasons correctly identify s 109 of the Victorian Civil and Administrative Tribunal Act 1998 (“ VCAT Act”) as the provision determining the award of costs. That section relevantly provides as follows:

109Power to award costs
(1)Subject to this Division, each party is to bear their own costs in the proceeding.
(2)At any time, the Tribunal may order that a party pay all or a specified part of the costs of another party in a proceeding.
(3)The Tribunal may make an order under subsection (2) only if satisfied that it is fair to do so, having regard to—
(a)whether a party has conducted the proceeding in a way that unnecessarily disadvantaged another party to the proceeding by conduct such as—
(i)failing to comply with an order or direction of the Tribunal without reasonable excuse;
(ii)failing to comply with this Act, the regulations, the rules or an enabling enactment;
(iii)asking for an adjournment as a result of (i) or (ii);
(iv)causing an adjournment;
(v)attempting to deceive another party or the Tribunal;
(vi)vexatiously conducting the proceeding;

(b)whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding;
(c)the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law;
(d)the nature and complexity of the proceeding;
(e)any other matter the Tribunal considers relevant.

The Tribunal determined that it was “fair” to make a costs order , stating that there were two “particular factors” on which it relied in making this finding. Those two factors were that in the Tribunal’s view “there was an exceptionally strong merits case in favour of the (amendments)” and that there was no appearance by the respondent at the hearing.[24] The plaintiff agrees that there was a strong merits basis for the amendments. She says that was the very reason there was no need for her to appear to oppose the application. I will return to the Costs Reasons in relation to the second factor, her non appearance, in discussion of Ground 4.
[24]Costs Reasons at [28] and [29].

Grounds

There are two grounds for relief in the originating motion that are now relied upon by the plaintiff, being Grounds 2 and 4 which are as follows:

2.The second defendant denied the plaintiff natural justice by determining the costs application without giving the plaintiff an opportunity to be heard on other substantive matters including why any costs should be ordered against the plaintiff in circumstances where s 109 of the VCAT Act provides and the practice in the Planning List of VCAT is that parties bear their own costs. The plaintiff’s letter of 12 October 2012 made it clear that the Plaintiff had other substantive submissions to make.
4.In concluding that the plaintiff had opposed the application for the amendment, the second defendant erred in law in that there was no basis whatsoever to conclude that there was any such opposition. Further, the conclusion that the matter was opposed in circumstances where there was no appearance was a conclusion which was so unreasonable that no reasonable Tribunal could have reached it.

Ground 2: denial of natural justice

The plaintiff accepts that she had made no submission within the time frame specified in the earlier orders. What she says is that the Tribunal having extended that opportunity, the Tribunal could not then unilaterally withdraw it. In the plaintiff’s submission, the Tribunal extended the opportunity to oppose the application by directing a telephone enquiry to her solicitors after the expiration of the earlier time frame. The letter sent in response to this extended opportunity contained, in the plaintiff’s submission, not only a request for access to the applicant’s solicitors’ files, but also an indication that the respondent would then make substantive submissions. It follows, in the plaintiff’s submission, that the Tribunal should first have notified its determination of that request, given a final opportunity to make submissions, and then determined the costs application.

The first defendant Council says that there was no obligation on the Tribunal to afford the plaintiff what would have been a third opportunity to oppose its costs application. She had already had one, by virtue of the orders of 14 August 2012, and a second by virtue of the telephone call. She could, so the first defendant submits, have put her substantive submissions in the letter generated by that telephone call. Indeed, as I observed in argument, it would have been more logical to put submissions in opposition to a costs order on liability before any submissions to be made on quantum. Inspection of the solicitors’ files was relevant, as the letter acknowledged, to quantum, not liability.

The first defendant also submits that the plaintiff did not follow the correct procedure in making its request for access to its practitioners files, by way of seeking consent to such an order or a further hearing, if consent was not forthcoming. While this may be so, the solicitors for the Council were copied in to the letter and in fact replied to the request contained therein, and the Tribunal did in fact treat the request as an application, and determined it. I do not consider that there is force in this aspect of the first defendant’s submissions.

However, there is force in the submission that the Tribunal was not required to give yet a third opportunity for response. Section 98 (1)(d) of the VCAT Act requires the Tribunal to:

conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit.

The obligation of speed could be defeated if the Tribunal was required to give a non participating party multiple opportunities to make submissions. Nor should a party be necessarily able to require yet another opportunity to put substantive submissions by simply making a further interlocutory application.

However, the obligation under s 98 (1)(d) must be read with the obligation under s 98(1)(a) of the VCAT Act that the Tribunal

(a) is bound by the rules of natural justice

In support of the proposition that what occurred here was a denial of that obligation, the plaintiff relies on Skabaw Pty Ltd v Morphett and ors[25] (“Skabaw”) a decision of Justice Hargrave. That case concerned a costs determination made by the Tribunal consequent on an adjournment of a hearing because a party had just become legally represented. The new legal representative sought that the question of the costs of the adjournment itself be adjourned, to enable him to review the materials, take instructions and so make responsible submissions to the Tribunal. The other party sought that the Tribunal then and there order a fixed sum for the costs thrown away by the adjournment. The Tribunal offered the new lawyer a limited time (one hour) to review the materials and obtain instructions, fixed an amount for part of the costs thrown away, and otherwise adjourned the costs application. The matter came before this Court on appeal on a question of law pursuant to s 148 of the VCAT Act and competing submissions were put, as in this case, on s 98(1)(a) (the obligation to afford natural justice) and s 98(1)(d) (the obligation to act with, inter alia, speed).
[25][2011] VSC 489

Hargrave J allowed the appeal, holding that:

The Tribunal member was, in the exceptional circumstances of this case, obliged by the rules of natural justice to provide (the lawyer) with a reasonable opportunity to consider the materials and take instructions before requiring him to make submissions concerning the costs consequences of the adjournment.

…

In my opinion, where a legal practitioner responsibly asks for a reasonable opportunity to consider material and make submissions on an important matter, the failure to give that opportunity may constitute a denial of natural justice. This is such a case.[26]

[26]Ibid, at [14]-[15].

In that case, it appears there was an issue as to whether the matter would have had to be adjourned in any event, for other reasons, which clearly could have impacted on determination of the costs of the adjournment. Hargrave J made it clear that his decision was on the facts of the particular case before him, stating:

Nothing in these reasons is intended to state any general principle that a party seeking time to put submissions concerning the costs consequences of an adjournment is prima facie entitled to that time. As I have said, this was an exceptional and, hopefully, rare case.[27]

[27]Ibid, at [24].

Nevertheless, the case does lend support to the contention that there may have been here a denial of natural justice, depending on the particular facts of this case. I turn now to further examination of those facts.

First I consider questions of timing. The call from the Registry was made some time after the expiration of the time period specified for response in the earlier orders. By comparison, the letter from the solicitors for the plaintiff was sent only a matter of days thereafter – the call was on Tuesday 9 October 2012 and the letter was sent on the Friday of that week. The Council also responded very quickly, by letter sent the following Tuesday. Thus within a week the Tribunal had the request for discovery and the response to it. Given the speed with which the solicitors for the plaintiff made the request for discovery, it would not have been unreasonable to assume that they could respond speedily with any necessary further substantive submissions if it was refused. Certainly, given the time that had already elapsed and the opportunities already given, it would not have been unreasonable to require them to make any further substantive submissions very quickly. The fact that a substantial period of time had already elapsed also suggests that there would not have been irremediable prejudice to the Council in giving the plaintiff that opportunity, nor much further delay for the parties or inconvenience to the Tribunal in the final determination of the matter.

Next I consider the terms of the letter from the plaintiff’s solicitors. I consider that on a fair reading it does indicate that the plaintiff wished to put submissions on liability, as well as quantum. In the third paragraph, the letter refers to the plaintiff’s position as being that the application was “misconceived”, but says she “also” wishes to put submissions on quantum. In the final paragraph, the letter proposes that the then respondent, now plaintiff, file and serve her submissions fourteen days after production of the requested files.

That the respondent’s/plaintiff’s opposition was in respect of both liability and quantum is recognised by the Tribunal in the Costs Reasons in the portion quoted earlier in these reasons. Logically, opposition on liability should come before opposition on quantum, but given the indication that the plaintiff pursued both I consider that the better course for the Tribunal would have been to give her one final, even if brief, opportunity to address liability, after determination of the application for production of files.

The Tribunal said no such opportunity should be given “for the reasons set out above”, which I presume to be a reference to the portions of the Costs Reasons I have quoted that find that the opportunity for response had been given by the earlier orders. Certainly those orders gave that opportunity. Was the Tribunal, having made the telephone enquiry (itself a second opportunity), then required to afford a third?

I am conscious that the enquiry was no doubt intended to benefit the parties, at least by putting beyond doubt whether or not the plaintiff wished to oppose the costs application, and am concerned not to discourage the making of such enquiry where it is appropriate. It may also seem counter intuitive to hold that by making such enquiry the Tribunal then created a fresh obligation to afford natural justice. However, on balance, I consider that in this particular factual circumstance such a fresh obligation was created. I accept the plaintiff’s submission that it could not then be retracted. Once the response to the enquiry was an indication that the plaintiff opposed the application, but sought another step before making submissions to that effect, I consider it was incumbent on the Tribunal to first notify refusal of that step, before determining the application as a whole, and so give a further and final, and possibly brief, opportunity for those submissions.

I have taken into account in reaching this conclusion the recent Court of Appeal decision on the award of costs in the Tribunal, GLS v PLP[28]. That case concerned an order that there be no award of costs, made on the basis that no application for costs had been foreshadowed at the substantive hearing. The order was made without further enquiry of the parties as to whether any application was to be made. The successful party at the Tribunal in fact did wish to seek costs, and the Court of Appeal upheld an appeal against the order on the ground of denial of procedural fairness. The factual situation is of course different here, where the costs application was foreshadowed at the substantive hearing (as GLS v PLP says should be done) and an opportunity to the other party to be heard was given, at least initially. Nevertheless, GLS v PLP does support in a general way the plaintiff’s proposition that failing to afford a necessary opportunity to be heard on costs may constitute denial of natural justice.
[28][2013] VSCA 127

The plaintiff submits that this denial of natural justice was a jurisdictional error. In that regard the plaintiff relies on the statement by Maxwell P. in Herald and Weekly Times Pty Ltd v Victorian Civil and Administrative Tribunal and ors (“HWT”)[29] that an order made in breach of natural justice constitutes jurisdictional error. The President stated that a direction refusing access by the appellant to certain files, “having been made in breach of natural justice, the Tribunal fell into jurisdictional error”. As a consequence, the President, with whom Eames JA and Nettle JA agreed, held that the direction was a nullity and the matter should be remitted to the Tribunal to be dealt with according to law. This is the order sought here by the plaintiff. Counsel for the plaintiff submits that not every breach of natural justice will amount to jurisdictional error, but says (without elaboration) that this breach so does.[30]
[29][2006] VSCA 7 at [42]
[30]Further written submissions for the plaintiff dated 25 June 2013.

The first defendant concedes that, if the Tribunal made an error which had the effect of denying the plaintiff an opportunity to make submissions concerning costs, it is a jurisdictional error.[31] As set out above, it is my conclusion that the Tribunal so erred. I will return shortly to the consequence of an established ground of the originating motion being jurisdictional error.
[31]First defendant’s further submissions dated 28 June 2013 at [3].

Ground 4: error of law on the face of the record

By this Ground, the plaintiff asserts that the Tribunal erred in law on the face of the record (being the Costs Reasons) in its conclusion that the plaintiff opposed the amendment application. The Ground has two limbs: first that that conclusion was not open to the Tribunal; second that the conclusion was so unreasonable that no reasonable Tribunal could have reached it.

The plaintiff says that the conclusions on liability in the Costs Reasons stand for the following incorrect propositions of law-

· first, that in the planning division at VCAT by not appearing and doing nothing a person served is to be treated as a party opposing the application, and thereby exposed to a costs order on that basis;

· second, that a respondent to an application for amendment of a minor nature to a permit must explain why she does not attend the hearing, and in the absence of acceptable explanation may face an adverse costs order;

I agree.

In my view it is plain that the Tribunal found that the then respondent/now plaintiff opposed the application. In the first dot point to paragraph 30 of the Costs Reasons (quoted earlier) the Tribunal asks if “the Respondent’s opposition to these changes constituted a “hopeless” position or close to” (emphasis added). In paragraph 32 of the Costs Reasons, where the Tribunal expressed its conclusion on quantum, the Tribunal notes as a relevant factor that “this particular Section 87 Application was being contested by the Respondent” (emphasis added). Counsel for the first defendant says that the conclusions on liability and quantum to which these findings relate could equally have been reached on the basis that the respondent did not enter an appearance. Perhaps so – I express no opinion. The point is that the Tribunal did not limit itself to the fact that she did not appear; it went further and found that the application was opposed.

This is a finding of fact, but it is challengeable as an error of law if there was no evidence for it. The first defendant Council says the evidence of opposition lay in the fact that service was proved; the plaintiff failed to communicate a view; further she failed to consent; and the plaintiff’s husband, Mr Dimitriou, also did not communicate a view or consent when contacted on the day of the hearing.

In my view, these matters cannot amount to opposition. At their highest, they evidence only lack of consent. I have some reservations in even putting the description that high, if lack of consent is to have an adverse costs consequence, in the absence of evidence that the Council contacted the plaintiff after service of the application and actively sought her consent. This particular issue was only touched on before me, however, and so I express no concluded view.

What was fully argued before me was whether there is a third alternative in proceedings in the Planning and Environment List of the Tribunal to, at one extreme, consent to, and at the other, opposition to, an application. The plaintiff submits that, as in ordinary civil litigation, there is a third alternative – being neither consent nor opposition i.e. the application is unopposed, most clearly evidenced by non appearance after service. Counsel for the first defendant says from the bar table that lack of participation in an amendment application is very unusual. Even if that is correct as a matter of fact, it does not alter what I consider to be the legal position that, in the absence of a statutory obligation to attend, a party may choose not to participate. The first defendant does not point me to any statutory basis in the VCAT Act for a different position in the Tribunal. To the extent the pro forma Tribunal forms Form A and B evidence Tribunal practice and procedure, nor do they suggest that a respondent must either consent or oppose. Nor does s 90 of the P & E Act in my view require that a respondent to an application to amend a permit must participate in or attend the hearing. The section requires that the land owner (the plaintiff) and occupier (if Mr Dimitriou falls into that category) have a reasonable opportunity to be heard- it does not require that such a person in fact participate.

Form A contains very detailed information about what to do if a person served wishes to oppose an application but it does not say, and nor could it in my view without statutory foundation, that a person served must either consent or oppose. The only content that could be, and is, relied upon by the first defendant in this regard is the text under the heading If you cannot attend the Hearing, but in my view that must be read in the light of the text that precedes it, and only applies to persons who wish to oppose and have shown that by filing and serving a Statement of Grounds, but are unable to attend the hearing. In particular, this reading is consistent with the italicised words that set out the consequences of not filing and serving a Statement of Grounds.

Some faint reliance was placed on the order made by the Tribunal at the directions hearing which, in terms, requires the respondent to file and serve a statement of grounds. In my view, however, that must be read as an extension of time to enable the respondent to participate, not a requirement that she do so.

In my view, the Costs Reasons clearly, and the Amendment Reasons perhaps, suggest that the Tribunal wrongly considered there were only two possible responses to an application – consent or opposition.

Dealing first with the Amendment Reasons, no criticism is made by the plaintiff of the Tribunal causing enquiry to be made at the commencement of the amendment hearing as to whether or not the plaintiff wished to attend, and nor should there be. The Tribunal may also at that time have fairly considered that there was an informal request for adjournment before it, given what the Member was told Mr Dimitriou had said. No criticism is made by the plaintiff of the Tribunal’s determination to nevertheless proceed.

There is, however, in my view a suggestion in the Amendment Reasons that the Tribunal considered that participation by the respondent was necessary, not just her right should she choose to exercise it. The Amendment Reasons state that the matter was stood down for enquiries as to the respondent’s non attendance “with a view to seeking to understand why there was no appearance on behalf of the owner”[32]. In determining to proceed, the Tribunal noted that “no reasonable excuse has been provided by Ms Dimitriou for her non-attendance at the hearing”[33]. In his conclusions that the amendment should be allowed, the Tribunal recorded as significant that the Tribunal endeavoured to contact the respondent “to check if there was still any chance the owner could attend at the hearing”[34].
[32]Amendment Reasons, at [12].
[33]Ibid, at [15].
[34]Ibid, at [27].

Turning to the Costs Reasons, the Tribunal’s conclusions on liability show clearly in my view that the Tribunal wrongly considered that there was an obligation on the respondent to either attend the hearing or to consent. I also consider that the Tribunal has wrongly equated non appearance with opposition. Non appearance, in the absence of consent or actual opposition, is simply non opposition. I have quoted earlier the references to the respondent opposing the application, when, as the first defendant concedes, there was no evidence of opposition in the strict sense. I now set out in full the Tribunal’s reasons in relation to the second factor it identified as supporting an adverse costs order, being non-appearance.

29. The second factor which I rely upon is simply that there was no appearance by the Respondent at the 3 August 2012 hearing of this proceeding at 55 King Street in the city. In all the circumstances, I am unsatisfied that the Respondent provided any proper excuse for its non‑appearance at this hearing. This situation is both quite disrespectful to the Tribunal and also resulted in considerable confusion and elongation of what might otherwise have been a relatively straightforward and short hearing process.
30. When the two factors discussed above are considered in totality, I consider that there is a strong argument that the proposed changes to the relevant Permit conditions arising from the proposal are so straightforward and relatively innocuous that:
·it is fair to ask the question whether the Respondent’s opposition to these changes constituted a “hopeless” position or close to; and
·I consider that many other owners in the Respondent’s position may well have negotiated an outcome both parties could live with, without the need for a hearing

and that both of these points reinforce that some form of cost order should be made by the Tribunal.[35]

[35]Costs Reasons at [29] and [30]

The whole tenor of paragraph 29 is that appearance is required. I have not been directed to any statutory obligation on a respondent to attend. The Tribunal then describes the same circumstance, non appearance, as opposition in paragraph 30. Further, the juxtaposition of “opposition” in the first dot point in that paragraph to the observation in the second dot point that many owners would have “negotiated an outcome both parties could live with” implies that the only two possible responses are opposition or consent, if necessary by negotiation. As indicated, the Tribunal has failed to take into account that, in the absence of an obligation to attend, non appearance may simply be neither consent nor opposition i.e. the third alternative of non opposition.

I consider that the Tribunal has erred in law in these respects, and that both limbs of Ground 4 are made out. I accept the plaintiff’s submissions that there was no evidence from which the Tribunal could conclude that the application was opposed. Further, in the absence of a statutory obligation to attend or consent, the conclusion that the application was opposed was so unreasonable that no reasonable Tribunal could have reached it.

The plaintiff also asserts that the Tribunal’s decision on quantum evidences another wrong principle, said to be that an order may be made for costs exceeding those actually sought. The costs sought by the Council were two/thirds of its actual costs of the application, the full amount of those actual costs being evidenced by the annexed schedule of work performed. The Tribunal in fact awarded the whole of the actual costs, yet curiously described this in the order as a “contribution” to the Council’s costs. There is no explanation for an order for the full costs in the Costs Reasons, save what may be gleaned by way of inference from the fact that the Tribunal notes as “the figure being claimed” the full costs, not what in fact was claimed, being the party/party assessment of two thirds.[36] This suggests simple error as to what was claimed.
[36]Costs Reasons at [31].

Although this may be error, I would have some doubt as to whether it is an error of law as opposed to one of fact. The Council says that, on the basis any error was a slip, there was a remedy available to the plaintiff, being to seek correction by way of the slip rule. Whether or not that would have been available depends on whether the amount awarded was an accidental slip, or an intentional, albeit wrong, finding.

In any event, there is no ground in the originating motion that relates to the plaintiff’s assertion of error in this regard, and no application to amend, and so I do not further consider this asserted error.

Discretion to refuse relief

At the hearing, the first defendant argued strongly that, even if Ground 4 was made out, relief by way of judicial review should be refused in the exercise of the Court’s discretion because the proper avenue for challenging an error of law is by way of appeal pursuant to s 148 of the VCAT Act. That section enables a party aggrieved with a decision of the Tribunal to appeal it to this Court on a question of law but only by leave. The matters to be established for the grant of leave were established by the Court of Appeal in Secretary to the Department of Justice v Hulls,[37] and subsequent decisions. Both parties took me to the statement by Kyrou J in Hoe v Manningham City Council[38] (“Hoe”) as to the significance in the grant of discretionary relief by way of judicial review of an alternative remedy of appeal as follows:

Section 148 of the VCAT Act provides a right of appeal on questions of law from decisions of VCAT, provided the Court grants leave. The existence of a more appropriate statutory remedy with a safeguard to prevent unmeritorious challenges to decisions of the VCAT is a very strong discretionary consideration in determining whether to grant relief under O 56 of the Rules. Ordinarily, an unsuccessful party to a proceeding before the VCAT would need to have a very good reason for seeking judicial review of the VCAT’s decision instead of applying for leave to appeal under s 148 of the VCAT Act. However, this Court is less likely to refuse relief on discretionary grounds where an application for judicial review is based on a jurisdictional error.[39]

[37][1999] 3 VR 331

[38][2013] VSC 195

[39] Ibid, at [70], footnotes omitted. See also, the statement to similar effect by the High Court in Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue of the State of Victoria[39]

In that case, as here, the proceeding before the Court was an application pursuant to o 56, although appeal by way of s 148 would have been available. Kyrou J held in that case that, notwithstanding the general rule, discretionary relief under o 56 should not be refused. The matters to which he had regard in reaching that conclusion were as follows:

· The Court could not conclude that the plaintiff (who in that case was self represented) deliberately sought to circumvent the leave requirements of s 148;

· Had the plaintiff in fact sought leave to appeal, it was highly likely that it would have been granted, given the conclusions the Court had reached in the o 56 proceeding;

· In a case where the Court had determined that the Tribunal had exceeded its jurisdiction, given the supervisory role of the Court it would be inappropriate for the Court to stand idle and allow that position to subsist;

· There was a long history to the dispute between the parties resulting in numerous proceedings and so it was in the public interest, as well as in the interest of the parties, to finally dispose of it; and

· Granting relief in the instant proceeding would be consistent with the overarching purpose of the Civil Procedure Act 2010.[40]

[40]Ibid, at [72] –[[76].

The plaintiff says that a similar approach should be taken in this case. In particular, the plaintiff says the following. First, that there is public interest in the correction of the asserted errors of law by the Tribunal under Ground 4, which I have found proved, because otherwise there could be a danger that the approach taken in this case would be regarded as a guideline for other cases. Second, that had an appeal been sought, leave to appeal would have been granted in any event. Third, that there is here, as in Hoe, a jurisdictional error established by Ground 2 and that is a sufficient basis for the grant of relief by way of judicial review; and fourth, refusal of relief would be inconsistent with the overarching purpose of the Civil Procedure Act 2010, to resolve the real issues in dispute in a just, efficient, timely and cost effective manner.

The first defendant resists relief on discretionary grounds on the basis that Ground 2 (denial of natural justice) is not made out, and Ground 4, even if made out, constituted only error of law, not want of or excess of jurisdiction. In support of the proposition that relief should be refused on that basis, the first defendant relies on North Burnside Pty Ltd v Melton Shire Council[41] (“North Burnside”) in which Osborn J (as he then was) refused relief under o 56 in respect of a decision of VCAT on the basis that the appropriate avenue was appeal under s 148. His Honour relied on the following statement by Gummow J in Minister for Immigration and Multicultural Affairs and Anor ex parte Eshetu[42] in relation to the analogous position in the High Court- a right of appeal by special leave as compared with the grant of prerogative relief in the original jurisdiction of the High Court:

These considerations have encouraged the view in this Court that it is desirable that the Federal Court ‘should be permitted to exercise its jurisdiction without interference by this Court by way of grant of prohibition except in those instances where the matter in question plainly gives rise to an absence or excess of jurisdiction’.[43]

[41][2006] VSC 35

[42](1999) 197 CLR 611 at 654-655

[43]Gummow J citing R v Judges of Federal Court of Australia; ex parte Pilkington ACI (Operations) Pty Ltd (1978) 142 CLR 113 at 127 and other authority; quote appears at [69] of the judgment of Osborn J.

In North Burnside the Court held there were no jurisdictional issues raised by the o 56 proceeding. The first defendant conceded at the hearing and confirms in its further written submissions that if this Court finds a denial of natural justice pursuant to Ground 2 (as I have), then that is a jurisdictional error. Thus North Burnside is distinguishable on that basis.

Further, in North Burnside, the order in question was interlocutory, and so the grant of any relief would have fragmented the proceeding. This would also have been a relevant factor tending against the grant of leave to appeal pursuant to s 148. Osborn J considered that that was particular reason why he would not have granted relief by way of judicial review had he considered that the plaintiff had otherwise made good its case. North Burnside is also distinguishable from this case on that basis, because here the order in question was final.

The first defendant confirms in its further written submissions in response that if Ground 2 is found established, then that is an error amenable to review pursuant to o 56, and the first defendant would not oppose relief on the basis that an appeal should have been pursued. I have found Ground 2 established, as well as Ground 4, and accordingly the basis for opposition on discretionary grounds falls away.

For completeness, I add that I accept the plaintiff’s submission that had an appeal been pursued on the two issues agitated before me rather than relief under o 56 (the Court of Appeal having recently held that a denial of procedural fairness is also a question of law for the purposes of s 148) [44], leave to appeal in all likelihood would have been granted on both questions. Further, there is nothing before me from which I could conclude that there was any deliberate attempt to avoid the leave procedure, and the originating motion was filed only shortly after the expiration of the appeal period in any event, so neither was there any significant time advantage gained. I am not entirely persuaded that there is any real danger that the judgment could have become a guideline judgment on the appropriate costs order where there is non appearance, as is asserted by the plaintiff, but it could have been relied upon as an instance, and given that I have found the approach to be in error, it is undesirable to leave it uncorrected. Finally, given that I have found error in fully argued proceedings, it could be inconsistent with the overarching purpose which the Court must bring to bear pursuant to s 7 of the Civil Procedure Act 2010 to refuse relief if that could generate further proceedings in relation to essentially the same issue.
[44]GLS v PLP, op cit, at [7].

Orders

For these reasons, I will make the orders sought by the plaintiff, that the decision of the Tribunal made 26 October 2012 be set aside and the first defendant’s application for the costs of the amendment application be remitted to the Tribunal for hearing according to law. I will hear the parties in relation to the costs of this proceeding.

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Dimitriou v Glen Eira City Council [2013] VSC 359

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Skabaw Pty Ltd v Morphett [2011] VSC 489

GLS v PLP [2013] VSCA 127

Herald and Weekly Times Pty Ltd v Victorian Civil and Administrative Tribunal [2006] VSCA 7

[2013] VSC 359

18 July 2013