Dimitriou v Glen Eira City Council - [2013] VSC 359

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] VSC 359
Decision Date: 18 July 2013

CaseChat Overview and Summary

In Dimitriou v Glen Eira City Council, the applicant sought judicial review of a decision by VCAT regarding the allocation of costs. The crux of the dispute was whether the denial of natural justice, specifically not allowing the applicant to make further submissions on costs after her application to access the other party’s files was refused, constituted a jurisdictional error. The Supreme Court of Victoria was tasked with determining the validity of the VCAT decision.

The legal issues before the court included whether the denial of natural justice was a jurisdictional error and whether this error was apparent on the face of the record. Furthermore, the court had to consider whether the Tribunal’s finding that the applicant opposed an application to amend a permit due to her non-participation was reasonable, given that the applicant had the right to choose not to participate in such applications.

The court found that the denial of natural justice was indeed a jurisdictional error, as it prevented the applicant from making further submissions on costs after her application for access to the other party’s files was refused. This conclusion was supported by the absence of evidence to substantiate the Tribunal's finding that the applicant opposed the permit amendment application by not participating. The court held that a party may legitimately choose not to participate in such applications, and thus, the conclusion that non-participation equated to opposition was unreasonable. The court also noted that while discretionary relief under Order 56 was not refused, the applicant could have raised these matters on appeal under section 148 of the VCAT Act.

The final orders of the court included a declaration that the VCAT decision contained a jurisdictional error due to the denial of natural justice. Additionally, the court quashed the decision of VCAT regarding the allocation of costs and remitted the matter back to VCAT for reconsideration in light of the jurisdictional error identified.

Orders