Hudson Yards Pty Ltd v Minister for Planning
[2018] VSC 277
•31 May 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
VALUATION, COMPENSATION AND PLANNING LIST
S CI 2018 01140
| HUDSON YARDS PTY LTD (ACN 610 403 417) | Plaintiff |
| v | |
| MINISTER FOR PLANNING (and others according to the schedule) | Defendants |
| S CI 2018 01142 | |
| LA ESQUINA PTY LTD (ACN 615 887 128) | Plaintiff |
| v | |
| MINISTER FOR PLANNING (and others according to the schedule) | Defendants |
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JUDGE: | GARDE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 April 2018 |
DATE OF JUDGMENT: | 31 May 2018 |
CASE MAY BE CITED AS: | Hudson Yards Pty Ltd v Minister for Planning |
MEDIUM NEUTRAL CITATION: | [2018] VSC 277 |
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CATCHWORDS
PLANNING – Call in of proceedings in the Victorian Civil and Administrative Tribunal by the Minister for Planning – Efficacy of call in notices – Compulsory conference – Privative clauses – Meaning of expressions ‘in the nature of’, ‘directions hearing’, ‘preliminary hearing’ and ‘interlocutory hearing’ in sch 1 cl 58(3) and 58(5) of the Victorian Civil and Administrative Tribunal Act 1989 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Pizer QC with | Norton Rose Fulbright |
| Mr E Nekvapil | ||
| For the First Defendant | Mr D Batt QC with Mr R Chaile | Maddocks |
| For the Second to Fourth Defendants | No appearance |
HIS HONOUR:
Introduction
Hudson Yards Pty Ltd (‘Hudson Yards’) and La Esquina Pty Ltd (‘La Esquina’) (‘the plaintiffs’) each seek a declaration that the call in by the Minister for Planning (‘Minister’) of a proceeding in the Victorian Civil and Administrative Tribunal (‘Tribunal’) is of no effect. Each contends that the Minister’s call in notice dated 21 February 2018 addressed to the Principal Registrar of the Tribunal was ineffective because the notice was given after the conduct of a compulsory conference by the Tribunal, and was therefore not given within the time period specified in sch 1 cl 58(3) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’). The Minister contests each proceeding and says that the notices were given in time and are effective to remove each proceeding from the Tribunal for decision by the Governor in Council. The plaintiffs do not raise any other issue concerning the validity or efficacy of the call in notices.
The development proposals
Hudson Yards is a company established to develop land at 365-391 Plummer Street, Port Melbourne. It seeks to demolish existing buildings and construct a mixed use development, including a supermarket and other facilities and car parking.
La Esquina owns land at 17 Rocklea Drive, Port Melbourne. It intends to develop that land by demolishing an existing building and constructing a multi-unit residential development including ground floor retail uses and car parking.
The Tribunal proceedings
The Tribunal proceedings brought by the plaintiffs followed similar procedures and timetables. Both were use and development applications for land in the Fishermans Bend area of Melbourne. Both were major cases. Both relied on failures to decide within the prescribed time by the Minister, and were brought under s 79 of the PE Act.
Initiating orders, made by the Tribunal soon after the proceedings commenced, gave directions for the conduct of each proceeding including for a Practice Day hearing in December 2017, a compulsory conference in early February 2018 and a hearing date in March 2018. Compulsory conferences were conducted as scheduled under the initiating orders, but were unsuccessful in resolving the proceedings. The Tribunal gave further directions at the end of each compulsory conference. On 21 February 2018, the Minister gave notices to the Principal Registrar of the Tribunal calling in the proceedings.
The Minister’s power to call in a proceeding
Schedule 1 cl 58 of the VCAT Act gives the Minister power to call in a proceeding before the Tribunal, referring a decision made under the Planning and Environment Act 1987 (Vic) (‘PE Act’) for review by the Governor in Council:
(1)This clause applies to a proceeding for review of a decision under the Planning and Environment Act 1987 if the Minister administering the Planning and Environment Act 1987 considers that—
(a)the proceeding raises a major issue of policy; and
(b)the determination of the proceeding may have a substantial effect on the achievement or development of planning objectives.
(2)The Minister administering the Planning and Environment Act 1987 may—
(a)by notice in writing to the principal registrar call in the proceeding; or
(b)invite the Tribunal—
(i)to decline to hear or to continue to hear the proceeding and refer it to the Governor in Council for determination; or
(ii)to hear or to continue to hear the proceeding but, without determining it, refer it with recommendations to the Governor in Council for determination.
(3)A notice or invitation under subclause (2) is of no effect unless it is given—
(a)before the final determination of the proceeding; and
(b)no later than 7 days before the day fixed for the hearing of the proceeding.
(4)If the Minister calls in a proceeding under subclause (2)(a)—
(a)the Tribunal must not commence or continue to hear the proceeding; and
(b)the principal registrar must refer the proceeding to the Governor in Council for determination.
(5)In subclause (3) a reference to a hearing does not include a reference to a hearing in the nature of a directions hearing, preliminary hearing or interlocutory hearing.
…
Schedule 1 cl 61 deals with the effect of a referral to the Governor in Council:
(1)If a proceeding is referred to the Governor in Council under clause 58…
(a)the principal registrar must—
(i)give a copy of the recommendations that accompanied the referral to each party to the proceeding within a reasonable time after the referral; and
(ii)make a copy of the recommendations available during office hours for inspection by any person without charge; and
(b)the Governor in Council may determine the proceeding and make any orders in relation to the proceeding that could have been made by the Tribunal.
(1A)If a proceeding is referred to the Governor in Council under clause 58 … the Governor in Council is not bound by any decision, determination or order made by the Tribunal in the proceeding.
(2)An order made by the Governor in Council referred to in subclause (1)(b) is deemed to be an order of the Tribunal.
The term ‘proceeding’ is defined in s 3 of the VCAT Act to mean:
… a proceeding in the Tribunal, including—
…
(b)a compulsory conference under section 83; …
Call in notices
The call in notices dated 21 February 2018 were in similar form:
Dear Principal Registrar
[address]
[VCAT reference]I refer to the above application for review and regarding [address], which is scheduled for 4 days with the hearing commencing 19 March 2018.
Please be advised that I consider that the proceeding raises a major issue of policy and the determination of the proceeding may have a substantial effect on the development and achievement of planning objectives in Fishermans Bend for the following reasons:
·The application involves a significant development within the context of the area which is declared as an urban renewal project of State significance under Section 201F of the Planning and Environment Act 1987.
·The determination of the proceeding may have a substantial effect on the development and achievement of planning objectives in Fishermans Bend as it may result in development occurring which is inconsistent with the proposed Fishermans Bend Strategic Framework Plan as regards to development density, timing of development, timing and method of delivery of infrastructure and overall population levels to be achieved.
Accordingly, under Clause 58(2)(a) of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998, I give notice of my decision to call in the proceeding and now request that you refer the proceeding to the Governor in Council for determination.
I understand you will advise all parties of this notice by VCAT order.
…
[Minister for Planning]
Following receipt of the call in notices, the Tribunal made orders on 1 March 2018 for the finalisation of the Tribunal proceedings and for the vacation of the scheduled Tribunal hearing. The orders made by the Tribunal assumed the call in notices were valid. The orders made by the Tribunal do not have any significance in determining whether or not the call in notices were effective.
It was common ground that the call in notices were given by the Minister to the Tribunal after the completion of the compulsory conferences but over seven days before the scheduled commencement of the final hearing in each proceeding.
The effect of cl 58(3)
In Buttigieg [No 2],[1] Morris J sitting as President of VCAT considered the effect of cl 58(3) holding that a directions hearing was a ‘hearing’ for the purposes of that provision. It was found that as a directions hearing had already been conducted the Minister could not subsequently call in the proceeding for determination by the Governor in Council.[2]
[1]Buttigieg v Melton Shire Council (2004) 134 LGERA 328 (‘Buttigieg [No 2]’). Morris J set out the history of the Minister’s call in power now contained in the VCAT Act sch 1 cl 58: see Buttigieg [No 2] (2004) 134 LGERA 328, 339–341 [37]–[44].
[2]Ibid 347 [68]–[69].
Less than two weeks later, a bill was introduced into the Parliament, proposing to insert what is now cl 58(5). [3]
[3]Victorian Civil and Administrative Tribunal (Amendment) Bill 2004.
The second reading speech relevantly describes the purpose of the Bill:
… in order to enable the minister to make a call in at any time prior to the final determination of a matter, it is now necessary to amend the act. The government needs to respond quickly to restore clarify and certainty for all users of the Victorian Civil and Administrative Tribunal. The amendments will confirm the general understanding about the role of the minister in the appeal system.
…
Under new subclause 58(3), a notice … has no effect unless given before the final determination of the proceeding and no later than seven days before the day fixed for the hearing. The new subclause 58(5) provides that a hearing does not include a hearing in the nature of a directions hearing, preliminary hearing or interlocutory hearing. Under new subclause 58(4), if the minister calls in a proceeding under clause 58(2)(a), the tribunal must not commence or continue to hear the proceeding and the registrar must refer the proceeding to the Governor in Council for determination…[4]
[4]Victoria, Parliamentary Debates, Legislative Assembly, 25 August 2004, 117 (Mary Delahunty, Minister for Planning) (emphasis added).
The Bill passed through Parliament, and came into effect as the Victorian Civil and Administrative Tribunal (Amendment) Act 2004 (Vic) (‘amending Act’) on 31 August 2004. The amending Act put cl 58 and 59 into their current form.
Compulsory conferences
The plaintiffs submitted that a compulsory conference is a hearing by the Tribunal within the meaning of cl 58(3) and (5).[5] The Minister made a similar submission. Both submissions are well founded, having regard to the opinions of the Neave JA and Robson AJA of the Court of Appeal in Lillas & Loel Lawyers Pty Ltd v Celona.[6] I will also proceed on the same basis, noting that if a compulsory conference were not a hearing within the meaning of cl 58(3) and (5) the point taken by the plaintiffs would not arise at all.
[5]Citing Lillas & Loel Lawyers Pty Ltd v Celona (2014) 43 VR 1, 3 [5]–[6] (Neave JA), 22 [107]–[108] (Robson AJA); Tresise v Stonnington CC [2016] VCAT 225, [30]–[36].
[6]Lillas & Loel Lawyers Pty Ltd v Celona (2014) 43 VR 1; cf Buttigieg [No 2] (2004) 134 LGERA 328, 344 [57].
Submission by the plaintiffs
The plaintiffs submitted that a compulsory conference is not ‘a hearing in the nature of a directions hearing, preliminary hearing or interlocutory hearing’ under cl 58(5), therefore, the call in notices were ineffective. Their main contentions as to the construction of cl 58(5) were:
(a) the rights of the parties to prepare in an orderly way for a compulsory conference, and the remainder of the proceeding, are better protected if they know at that time whether or not the proceeding will be called in;
(b) the rights of the parties to conduct the proceeding in a forthright and open manner are better protected by construing cl 58 as terminating the call in power before a compulsory conference. This will ensure that the compulsory conference can be conducted candidly, and prevent the Minister from using the compulsory conference as a ‘weather vane’;
(c) the independence and authority of the Tribunal are better protected by a construction that terminates the call in power before a compulsory conference; and
(d) if cl 58(3)(b) is construed as terminating the call in power before the date fixed for a compulsory conference, the Minister will have to focus before the compulsory conference on whether the proceeding should be determined by the executive rather than by the Tribunal.
The plaintiffs also submitted that the call in provisions found in cl 58 are privative in character, as they deprive the applicant to the Tribunal of the benefits of the public appeal process. If there is a constructional choice that is open between what the Minister contends and what the plaintiffs contend, they contended that the court should adopt the stricter approach.[7]
[7]Citing, Pioneer Concrete (Vic) Pty Ltd v McCutcheon (1992) 77 LGRA 77, 77–78; see also Cole v Director-General of Department of Youth and Community Services (1986) 7 NSWLR 541.
Submission by the Minister
The Minister submitted that the reference to ‘a day fixed for the hearing of the proceeding’ in cl 58(3)(b) does not include a compulsory conference, as cl 58(5) excludes all hearings ‘in the nature of a directions hearing, preliminary hearing or interlocutory hearing’. He says that a compulsory conference is a hearing that is in the nature both of a preliminary hearing and an interlocutory hearing.
The Minister also submitted that the construction of cl 58(3) and (5) advanced by the plaintiffs would lead to complexity and technicality. The plaintiffs’ approach to the construction of cl 58(3) and (5) was rigid and would lead to difficulties in future application.
Principles of statutory interpretation
The principles of construction relating to statutes are well established. In Project Blue Sky Inc v Australian Broadcasting Authority, McHugh, Gummow, Kirby and Heydon JJ said:
... the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.[8]
[8]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 384 [78] (McHugh, Gummow, Kirby and Heydon JJ) (citations omitted).
A plurality of the High Court recently emphasised the importance of context in SZTAL v Minister for Immigration and Border Protection:
The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simple recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.[9]
[9]SZTAL v Minister for Immigration and Border Protection (2017) 91 ALJR 936, 940–941 [14] (Kiefel CJ, Nettle and Gordon JJ).
In CIC Insurance Ltd v Bankstown Football Club Ltd, the majority of the High Court said:
… the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses “context” in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous.[10]
[10]CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ).
These principles are consistent with s 35(1) of the Interpretation of Legislation Act 1984 (Vic), which requires that when interpreting a provision of an Act a construction that would promote the purpose or object underlying the Act be preferred to a construction that would not promote that purpose or object.
Statutory provisions
Provisions relating to compulsory conferences conducted by the Tribunal are found in pt 4 div 5 of the VCAT Act. Section 83 establishes and sets out the functions and procedures of a compulsory conference:
83 Compulsory conferences
(1)The Tribunal or the principal registrar may require the parties to a proceeding to attend one or more compulsory conferences before a member of the Tribunal or the principal registrar before the proceeding is heard by the Tribunal.
(2)The functions of a compulsory conference are—
(a)to identify and clarify the nature of the issues in dispute in the proceeding;
(b)to promote a settlement of the proceeding;
(c)to identify the questions of fact and law to be decided by the Tribunal;
(d)to allow directions to be given concerning the conduct of the proceeding.
(3)Notice of a compulsory conference must be given to each party in accordance with the rules.
(4)Unless the person presiding otherwise directs, a compulsory conference must be held in private.
(5)Subject to this Act and the rules, the procedure for a compulsory conference is at the discretion of the person presiding.
Under s 84, parties can be required by the Tribunal or the Principal Registrar to attend a compulsory conference personally or by a representative with authority to settle the proceeding on behalf of the party. If a party fails to attend a compulsory conference, it may proceed in their absence and the presiding member of the Tribunal may make orders determining the proceeding adversely to the absent party or direct that they be struck out of the proceeding.[11]
[11]VCAT Act s 87.
Evidence of anything said or done in the course of a compulsory conference is inadmissible in a Tribunal hearing, unless otherwise agreed between the parties or the evidence goes to the content of directions given.[12]
[12]Ibid s 85.
In Ian West Indoor and Outdoor Services Pty Ltd v Australian Posters Pty Ltd,[13] Emerton J described compulsory conferences as forming part of the general case management armoury available to the Tribunal. Unless otherwise ordered, they are held in private. They have a variety of functions including identifying and clarifying the nature of the issues in dispute and the questions of law and fact to be decided by the Tribunal, and allowing directions to be given concerning the conduct of the proceeding. Promoting the settlement of the proceeding is also a significant function of a compulsory conference.[14]
[13][2011] VSC 287.
[14]Ibid [22].
Context
The call in provisions are intended to give the Government of the day responsibility for planning decisions which involve significant matters of policy.[15] The existence of the call in power recognises that certain applications for review will have such significance to the State that it is appropriate that the decision be made at the highest level appropriate for an administrative decision – that is by the Governor in Council.[16]
[15]Victoria, Parliamentary Debates, Legislative Council, 28 November 1978, 6361–6362 (Alan Hunt, Minister for Local Government).
[16]Buttigieg v Melton Shire Council (2005) 23 VAR 326, [28] (‘Buttigieg [No 4]’).
In considering the scope of the call in provisions in sch 1 of the VCAT Act, it is important to observe that they arise only in a very limited range of circumstances. Before a proceeding can be called in, the Minister must consider that the proceeding satisfies two threshold requirements. It must raise a major issue of policy; and the Minister must consider that the determination of the proceeding may have a substantial effect on the achievement or development of planning objectives.[17] It is the exceptional rather than the ordinary case where the necessary opinions required for call in can be formed. In the present case, the existence of these threshold requirements for the use of the call in power by the Minister was not in dispute.
[17]VCAT Act sch 1 cl 58(1).
Purpose of the amending Act
The purpose of the amending Act is evident from its provisions, language and the second reading speech.[18] Clause 58 of sch 1 to the VCAT Act was amended in direct response to Buttigieg [No 2]. It plain that Parliament intended the amending Act to reverse the legal effect of that decision, and enable the Minister to call in a proceeding prior to its final determination or prior to 7 days before the date fixed for the hearing that would lead to the final determination of the proceeding. While in the second reading speech the Minister described (inaccurately) the purpose of the amending Act as being ‘to enable the minister to make a call in at any time prior to the final determination of a matter’, [19] it is clear that what is intended is that the power may not be exercised later than 7 days before the date fixed for the final hearing of the proceeding. This purpose is evident from the provisions and language of the amending Act and from the second reading speech.
[18]Victoria, Parliamentary Debates, Legislative Assembly, 25 August 2004, 117 (Mary Delahunty, Minister for Planning).
[19]Ibid.
Privative clauses
The plaintiffs submitted that the call in provisions found in cl 58 are privative in character and should be construed strictly.[20]
[20]See above [18].
Since the decision of Nathan J in Pioneer Concrete (Vic) Pty Ltd v McCutcheon,[21] the law concerning privative clauses has been considered and refined by the High Court of Australia and the Court of Appeal in Victoria. In Kirk v Industrial Relations Commission of NSW, the majority of the High Court said:
Understanding the law relating to privative provisions must begin from the proposition, stated by Dixon J in R v Hickman; Ex parte Fox and Clinton, that:
if in one provision it is said that certain conditions shall be observed, and in a later provision of the same instrument that, notwithstanding they are not observed, what is done is not to be challenged, there then arises a contradiction, and effect must be given to the whole legislative instrument by a process of reconciliation.[22]
[21](1992) 77 LGRA 77.
[22](2010) 239 CLR 531, 579 [94] (French CJ, Gummow, Hayne, Crennan, Kiefel, and Bell JJ) (‘Kirk’), quoting R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598, 617 (‘Hickman’).
In Plaintiff S157/2002 v Commonwealth, the plurality of the High Court expanded on the principles outlined by Dixon J in Hickman:
In Hickman, a question arose as to the effect of reg 17 of the National Security (Coal Mining Industry Employment) Regulations 1941 (Cth), made under the National Security Act 1939 (Cth) and thus supported by the defence power. Regulation 17 provided that a decision of a Local Reference Board, which had a general power to settle disputes as to any local matter likely to affect the amicable relations of employers and employees in the coal mining industry, "[should] not be challenged, appealed against, quashed or called into question, or be subject to prohibition, mandamus or injunction, in any court on any account whatever". Dixon J said of reg 17:
The particular regulation is expressed in a manner that has grown familiar. Both under Commonwealth law, and in jurisdictions where there is a unitary constitution, the interpretation of provisions of the general nature of reg 17 is well established. They are not interpreted as meaning to set at large the courts or other judicial bodies to whose decision they relate. Such a clause is interpreted as meaning that no decision which is in fact given by the body concerned shall be invalidated on the ground that it has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its acts within the limits laid down by the instrument giving it authority, provided always that its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body."
It should be noted at once that, in the passage last quoted, Dixon J was not speaking of reg 17, but of privative clauses generally. Even so, it is important to appreciate that his Honour's observations were confined to "decision[s] ... in fact given". Moreover and as later decisions of this Court have made clear, the expression "reasonably capable of reference to the power given to the body", has been treated as signifying that it must "not on its face go beyond ... power". Thus, even on this general statement, a privative clause cannot protect against a failure to make a decision required by the legislation in which that clause is found or against a decision which, on its face, exceeds jurisdiction.
...
It follows from Hickman, and it is made clear by subsequent cases, that the so-called "Hickman principle" is simply a rule of construction allowing for the reconciliation of apparently conflicting statutory provisions. Once this is accepted, as it must be, it follows that there can be no general rule as to the meaning or effect of privative clauses. Rather, the meaning of a privative clause must be ascertained from its terms; and if that meaning appears to conflict with the provision pursuant to which some action has been taken or some decision made, its effect will depend entirely on the outcome of its reconciliation with that other provision.[23]
[23](2003) 211 CLR 476, 499–501 [56]–[60] (Gaurdron, McHugh, Gummow, Kirby and Hayne JJ) (‘Plaintiff S157/2002’) (citations omitted), quoting Hickman (1945) 70 CLR 598, 614–615.
Referring to the Migration Act 1950 (Cth), the Court said:
(1) a decision affected by jurisdictional error cannot be regarded as ‘a decision ... under this Act’; and
(2) this Court has clearly held that an administrative decision which involves jurisdictional error is ‘regarded in law, as no decision at all’.[24]
[24]Plaintiff S157/2002 (2003) 211 CLR 476, 506 [76], citing Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, 614–615 [51]; see also Talacko v Talacko (2016) 312 FLR 159, 201 [215] (Santamaria JA in dissent).
In coming to this conclusion, the Court found:
The ... basic rule, which applies to privative clauses generally, is that it is presumed that the Parliament does not intend to cut down the jurisdiction of the courts save to the extent that the legislation in question expressly so states or necessarily implies. Accordingly, privative clauses are strictly construed.[25]
[25]Plaintiff S157/2002 (2003) 211 CLR 476, 505 [72] (citations omitted).
To the same effect are the words of Dawson and Gaudron JJ in Public Service Association (SA) v Federated Clerks Union:
Privative clauses ... are construed by reference to a presumption that the legislature does not intend to deprive the citizens of access to the courts, other than to the extent expressly stated or necessarily to be implied.[26]
[26](1991) 173 CLR 132, 160, cited in Plaintiff S157/2002 (2003) 211 CLR 476, 505 [72], quoted in Bare v IBAC (2015) 48 VR 129, 164–165 [101] (Warren CJ) (‘Bare’).
In Bare v IBAC, Warren CJ said that there cannot be any doubt that privative clauses should be narrowly construed.[27] Santamaria JA also expressed the view that privative clauses should be strictly construed.[28] Tate JA, after summarising the relevant authorities, concluded:
The basic rule of construction of privative or ouster clauses is thus an illustration of the principle that it is to be assumed that even the most general words used were intended by the Parliament to be subject to the right of access to the courts in the absence of express language or necessary implication to the contrary.[29]
[27](2015) 48 VR 129, 164 [100], citing Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602, 631; Public Service Association (SA) v Federated Clerks Union (1991) 173 CLR 132, 160; Plaintiff S157/2002 (2003) 211 CLR 476, 505; Herald v Weekly Times Pty Ltd v A (2005) 160 A Crim R 299, 300.
[28]Bare (2015) 48 VR 129, 318 [590] (citations omitted).
[29]Ibid 239 [336].
As set out in the above passages from PlaintiffS157/2002,[30] the principles relating to privative clauses are simply rules of construction relating to the reconciliation of apparently conflicting statutory provisions.[31] The meaning of a privative clause must be ascertained from its ordinary and natural meaning, context and purpose like any other statutory provision. If that meaning appears to conflict with the provision pursuant to which some action has been taken or some decision made, its effect will depend entirely on the outcome of its reconciliation with that other provision.
[30]See above [34].
[31](2003) 211 CLR 476, 501 [60].
Statutory language of cl 58(5)
Constructional difficulties do not arise in the present case. The ordinary and natural meaning of the words in cl 58(3) and (5) is entirely consistent with their context and purpose. This is not a case where context and purpose point to one interpretation and the language of the statute another, or where there are apparently conflicting statutory provisions which call for reconciliation. Rather, the construction of cl 58(3) and (5) is relatively straightforward, and one where a consideration of the meaning, purpose and context lead to the same constructional result. In addition, there is much to be said in favour of an interpretation that is simple and clear, and avoids complexity and technicality.
‘In the nature of’
In construing cl 58(5), it is first necessary to consider the meaning and effect of the words ‘in the nature of’ which precede the expression ‘a directions hearing, preliminary hearing or interlocutory decision’.
The plaintiffs referred the court to the decision of Basser v Medical Board of Victoria, where O’Bryan J held that the expression ‘in the nature of’ related to ‘the essential quality or characteristic’ of the subject matter under consideration.[32]
[32][1981] VR 953, 962; see also Aavelaid v Dental Board of Victoria [1999] VSC 54, [41], [71].
Likewise, in State Authority Superannuation Board v Commissioner of Taxation,[33] the majority of the Full Federal Court adopted a similar definition in deciding whether the function of the Board in administering a pension fund was an activity in the nature of a business. Davies J noted that in using the words ‘in the nature of’, that ‘it is undoubtedly correct that the draftsman intended to cast his net wide… the words “in the nature of” mean “having the character or essence of”.’[34]
[33](1988) 21 FCR 535.
[34]Ibid 547 (Davies J; Burchett J agreeing at 553).
The Minister submitted that the use of the words, ‘in the nature of’ is significant. They made plain that the exclusions in cl 58(5) are not limited to the hearings specified in that clause. Rather the exclusions extend to hearings that are properly characterised as being ‘in the nature of’ the three types of hearings specified in cl 58(5).
I accept as submitted by the plaintiffs that the expression ‘in the nature of’ is satisfied if the essential quality or characteristic of the hearing under consideration is a directions hearing, preliminary hearing or an interlocutory hearing. I also accept as submitted by the Minister that the words ‘in the nature of’ in cl 58(5) expand the ambit of the exclusions in that provision. They are not confined to what would strictly be the three types of hearings listed in the provision, but extend to hearings which have that same essential qualities or nature.
Directions hearing
In Buttigieg [No 2], Morris J decided that a directions hearing was sufficient to constitute a hearing for the purpose of cl 58(3), therefore, excluding the Minister’s ability to use his or her power to call in the proceeding. Clause 58(5), as enacted by the amending Act, directly reverses Buttigieg [No 2], by excluding directions hearings from the scope of cl 58(3). But it is much wider. It also extends to ‘a preliminary hearing’ and an ‘interlocutory hearing’. I agree with the parties that there is an overlap between these expressions and that they are not mutually exclusive.
Under s 80 of the VCAT Act, the Tribunal can give directions at any time in a proceeding. The power to give directions is exercisable by any member of the Tribunal. In the Planning and Environment (Major Cases) List, directions are commonly given at a Practice Day hearing.
According to the Tribunal’s practice note concerned with directions hearings and urgent hearings, at a directions hearing, the Tribunal may ask the parties to:
(a) identify the real issues in dispute;
(b) indicate any special case management issues;
(c) consider any specific issues raised in a party’s request for a directions hearing;
(d) consider whether the proceeding should be referred to alternative dispute resolution;
(e) provide the names and availability of witnesses whose evidence will be relied on at the final hearing;
(f) provide an estimate of the final hearing; and
(g) identify any other relevant matters that may facilitate the fair and efficient conduct of the proceeding.[35]
[35]Victorian Civil and Administrative Tribunal, Practice Note PNVCAT 5 — Directions Hearings and Urgent Hearings, 15 March 2012, [13].
Although the content of a VCAT practice note cannot affect the construction of a provision of the VCAT Act, the purposes of a directions hearing listed in the practice note are illustrative and representative of the directions that may be given in a court or Tribunal at a directions hearing.
Preliminary hearing
The expression ‘preliminary hearing’ is not defined in the VCAT Act. It is not a technical expression defined by legal precedent or past usage.
In its ordinary meaning, the word ‘preliminary’ includes meanings such as ‘preparatory’, ‘introductory’, ‘initial’ and ‘opening’. The Macquarie Dictionary’s first listed definition of the word ‘preliminary’ states:
preceding and leading up to the main matter or business; introductory; preparatory.[36]
[36]Macquarie Dictionary (6th ed, 2013) 1158.
In Buttigieg [No 2], Morris J observed that in the Planning and Environment List, the hearing of a proceeding might be divided into a preliminary hearing as to whether or not a proposed development is prohibited; and assuming it is not prohibited, a second hearing in relation to the merits of the development.[37]
[37]Buttigieg [No 2] (2004) 134 LGERA 328, 330–331 [4]–[8].
In Drew v Baw Baw Shire Council, Morris J referred to cl 58(5) and observed:
Whatever I might think of the wisdom of clause 58(5), I am, of course, bound to faithfully apply it. Neither the term “preliminary hearing” or the term “interlocutory hearing” is defined in the VCAT Act. In such circumstances, the semantic meaning of these terms is to be ascertained by reference to the natural meaning of the words used. However the legal meaning of the terms involves more than merely adopting the semantic meaning: it requires the identification of the normative message sought to be conveyed by the use of the term. This task may appear deceptively simple; but, having regard to the complex and varied manner in which proceedings are actually decided, it may not be as it appears.[38]
[38](2006) 24 VAR 339, 354 [58] (citations omitted).
The plaintiffs submitted that a hearing was not a preliminary hearing just because it takes place at a time before the final hearing. They submitted that the notion of a preliminary hearing is more confined, for example, to a hearing to determine a jurisdictional objection or a separate legal or factual question. They submitted that a compulsory conference was not a preliminary hearing.
The Minister submitted that a compulsory conference was in the nature of a preliminary hearing. This conclusion is consistent with the functions of a compulsory conference as listed in s 83(2) of the VCAT Act. It was said that the scope and nature of a proceeding may not be clear until after a compulsory conference and this fact lends support to the Minister’s submission.
I accept the Minister’s submission that the expression ‘preliminary hearing’ extends to any hearing anterior to the final hearing at which the merits are decided and the proceeding finally determined. This interpretation is more consistent with the purpose of the amending Act and with the ordinary English meaning of the word ‘preliminary’. Such an interpretation will give more certainty to the expression ‘preliminary hearing’ and remove any doubt as to what is included in the expression. Compulsory conferences are examples of preliminary hearings, as are numerous other types of hearings including jurisdictional challenges, applications for summary dismissal, security for costs, extension or abridgement of time, resolution of preliminary questions and many others.
In my view, it is more consistent with the purpose and intent of the amending Act that a wide, rather than a narrow, technical or pedantic view, be taken of the expression ‘preliminary hearing’. A semantic or technical definition would leave ongoing doubt as to the scope of the exclusion effected by cl 58(5).
Interlocutory hearing
The third expression found in cl 58(5) is ‘interlocutory hearing’. The Macquarie Dictionary gives as the third and relevant meaning of the term ‘interlocutory’:
Law temporary or provisional, pending final judgement or determination; interim…[39]
[39]Macquarie Dictionary, above n 36, 773.
In Gilbert v Endean, Cotton LJ considered the nature of an interlocutory application:
... those applications only are considered interlocutory which do not decide the rights of parties, but are made for the purpose of keeping things in status quo till the rights can be decided, or for the purpose of obtaining some direction of the court as to how the cause is to be conducted, as to what is to be done in the progress of the cause for the purpose of enabling the court ultimately to decide upon the rights of the parties.[40]
[40](1878) 9 Ch D 259, 268–269.
This decision has been followed in many subsequent cases, including in National Exchange Pty Ltd v Brown,[41] and in FAI Home Security Pty Ltd v Price,[42] where the authorities are extensively reviewed.
[41](2004) 185 FLR 121, 125 [17] (Williams J).
[42][1999] VSC 274, [6] (Byrne J).
In Savings & Investment Bank Ltd v Gasco Investments (Netherlands) BV [No 2],[43] Nicholls LJ described the essence of the distinction between interlocutory proceedings and final proceedings as being that interlocutory proceedings are proceedings other than the trial of the action or the equivalent in the case of an originating summons or other originating process. The trial of an action would, in general, be regarded as ‘final’ even though there may be exceptions depending on the nature of the claims in the proceedings.[44]
[43][1988] Ch 422.
[44]Ibid 444.
In Lucas v Transport Corporation Victoria,[45] Chernov JA considered whether an order permanently staying a proceeding was final or interlocutory. The Court held that the applicable test was whether the order appealed from finally determined the rights of the parties having regard to the legal, rather than the practical, effect of the judgment or order.[46]
[45](2000) 1 VR 156.
[46]Ibid 158 [8] (Chernov JA, Brooking and Batt JJA agreeing), citing Licul v Corney (1976) 180 CLR 213, 225; Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246 (Gibbs CJ).
Similar tests were applied in Licul v Corney;[47] Carr v Finance Corporation of Australia (No 1),[48] Herald and Weekly Times Ltd v The Guide Dog Owners’ and Friends Association,[49] as to whether the relevant judgments were final or interlocutory.
[47](1976) 180 CLR 213, 225.
[48](1981) 147 CLR 246, 248 (Gibbs CJ).
[49][1990] VR 451, 455 (O’Bryan J), 461 (Marks J).
It is true, as pointed out by Morris J in Drew v Baw Baw Shire Council,[50] that an interlocutory order may be made at a final hearing, and a final order may be made at what was proposed to be an interlocutory hearing. However, the distinction between final and interlocutory applications, judgments and orders is long standing and has been recognised and upheld in decisions of the High Court and superior courts, some of which I have listed above.
[50](2006) 24 VAR 339, 354–355 [60].
In my opinion, once it is recognised that a compulsory conference is a hearing, there can be no doubt that it is an interlocutory hearing. It is a hearing required by the Tribunal in the course of the proceeding and before the final hearing is conducted. It does not involve a final determination of the proceeding on the merits. The functions of a compulsory conference as set out in s 83 of the VCAT Act are all functions capable of being conducted in an interlocutory hearing, with the addition of the function of promoting a settlement of the proceeding. While the parties may reach an agreement to settle the proceeding, there is nothing about a compulsory conference that involves the final determination of the rights of the parties, or the merits of the proceeding, or the consequent making of final orders. A compulsory conference does not involve a final hearing. Rather, if the proceeding is not settled during the compulsory conference, directions may be given that will assist the parties to be ready for a final hearing on a later occasion.
Conclusion
Each of the expressions ‘directions hearing’, preliminary hearing’ and ‘interlocutory hearing’ are of wide import. Taken collectively they embrace all types of hearings that may be required in the course of a proceeding in the Planning and Environment (Major Cases) List prior to the final hearing, which decides the merits and determines the ultimate outcome of the proceeding. Such a construction of sch 1 cl 58(3) and (5) will give simplicity, certainty and clarity to the call in power, as was the purpose of the amending Act.
It follows that the call in of the plaintiffs’ proceedings in the Tribunal by the Minister is effective to refer these proceedings to the Governor in Council for determination.
The plaintiffs’ amended originating motions will be dismissed.
SCHEDULE OF PARTIES
S CI 2018 01140 Between HUDSON YARDS PTY LTD (ACN 610 403 417) Plaintiff and MINISTER FOR PLANNING First defendant PORT PHILLIP CITY COUNCIL Second defendant TRANSPORT FOR VICTORIA Third defendant VICROADS CORPORATION Fourth defendant S CI 2018 01142 Between LA ESQUINA PTY LTD (ACN 615 887 128) Plaintiff and MINISTER FOR PLANNING First defendant PORT PHILLIP CITY COUNCIL Second defendant TRANSPORT FOR VICTORIA Third defendant ENVIRONMENT PROTECTION AUTHORITY Fourth defendant
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