IGA Retail Services Pty Ltd v Minister for Planning

[2025] VSCA 123

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2024 0125

IGA RETAIL SERVICES PTY LTD & ANOR (ACCORDING TO THE ATTACHED SCHEDULE)	Applicants
v
MINISTER FOR PLANNING & ORS (ACCORDING TO THE ATTACHED SCHEDULE)	Respondents
KEVMILLE PTY LTD	Proposed Intervener

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JUDGES:	NIALL CJ, EMERTON P and RICHARDS JA
WHERE HELD:	Melbourne
DATE OF HEARING:	29 May 2025
DATE OF JUDGMENT:	29 May 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 123

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PRACTICE AND PROCEDURE – Application to intervene by plaintiff to separate proceeding – Application to intervene in proceeding concerning two questions reserved for the Court of Appeal by a judge of the trial division – Where identified legal interest is the likelihood of being affected by the outcome of the proceeding – Permission to intervene refused.

Roadshow Films Pty Ltd v iiNet Limited (2011) 248 CLR 37; Levy v Victoria (1997) 189 CLR 579, considered.

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Counsel
Applicants		Mr N Wood SC with Mr R Chaile
First Respondent		Mr E Nekvapil SC with Ms C van Proctor
Proposed Intervener		Ms K O’Gorman SC with Mr M Hosking
Solicitors
Applicants	Minter Ellison
First Respondent	Victorian Government Solicitor’s Office
Proposed Intervener	Taits Legal

f

NIALL CJ
EMERTON P
RICHARDS JA:

1. Before the court are two questions reserved for the consideration of this Court by a judge of the trial division. The questions arise from a proceeding for judicial review of a decision and report of a panel constituted under the Planning and Environment Act 1987 (the ‘Act’) in relation to a proposed amendment to a planning scheme. The proposed amendment has been adopted by the planning authority but has not been approved by the Minister.

2. The issues raised concern, amongst other things, the construction of s 39 of the Act.

3. By application dated 5 February 2025 Kevmille Pty Ltd (‘Kevmille’) seeks leave to intervene in this proceeding. It is a party to a separate proceeding in the trial division (S ECI 2024 02586) in which it seeks judicial review of an approved planning scheme amendment. The planning scheme in the Kevmille proceeding is different to that which concerns the proceeding in this Court.

4. Considering that the outcome in the proceeding in this Court might have some precedential bearing on its own proceeding, Kevmille wishes to intervene. It has filed submissions which it would seek to make if granted leave. In part, those submissions draw attention to the construction and operation of s 39(7) of the Act which relates to challenges to the validity of an approved amendment. That provision is not directly engaged in the current proceeding because, as already observed, the proposed amendment in the current proceeding has not been approved.

5. The only interest identified by Kevmille in its application is that its proceeding may be affected by the outcome of the proceeding or the reasons given by this Court in answering the questions referred to it.

6. The principles upon which a court may grant leave to intervene are not in dispute. The governing principles may be briefly summarised as follows:

   (a)a non-party whose interests would be affected directly by a decision in a proceeding is entitled to intervene to protect the interest liable to be affected;

   (b)where the legal interests of a person may be affected by the operation of precedent or by the doctrine of stare decisis, a court may grant leave to intervene if the interest is sufficiently substantial;

   (c)where a person having the necessary legal interest to apply for leave to intervene can show that the parties to the particular proceeding may not present fully the submissions on a particular issue, being submissions which the Court should have to assist it to reach a correct determination, the Court may exercise its jurisdiction by granting leave to intervene;

   (d)a grant of leave may be limited, and subject to such conditions as to costs or otherwise as will do justice as between the parties; and

   (e)a non-party must satisfy the Court that its contribution, as an intervener, will be useful and different from the contribution of the parties, and that the intervention will not unreasonably interfere with the conduct of the proceeding.[1]

   [1]Bauer Media Pty Ltd v Wilson [2018] VSCA 68, [7] (Tate and Beach JJA).

7. In Roadshow Films Pty Ltd v iiNet Limited[2] the High Court — drawing on the judgment of Brennan CJ in Levy v Victoria[3] — observed that a non-party whose legal interest, for example in other pending litigation, is likely to be affected substantially by the outcome of the proceedings in this Court will satisfy a precondition for leave to intervene.[4] They continued by saying that

   [i]ntervention will not ordinarily be supported by an indirect or contingent affection of legal interests following from the extra-curial operation of the principles enunciated in the decision of the Court or their effect upon future litigation.[5]

   [2](2011) 248 CLR 37; [2011] HCA 54 (‘Roadshow’).

   [3](1997) 189 CLR 579, 600–5; [1997] HCA 31.

   [4]Roadshow (2011) 248 CLR 37, 38–9 [2] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ); [2011] HCA 54.

   [5]Ibid.

8. In our view, the mere potential precedential effect of the decision on other proceedings in the court does not amount to a direct interest in the proceeding in a way which would justify intervention in this case. In a system of precedent, cases decided in this Court will always have the potential to affect other proceedings. Although intervention has on occasions been granted to regulators or parties which have a particular interest in the administration of a statutory scheme, that is not this case. Kevmille has no other interest in the administration of the Act which may reflect some broader role justifying an intervention.

9. There are two further matters which weigh against granting leave to intervene. First, there is a potentially significant legal difference between the issues that arise in this case and those that arise in the Kevmille proceeding, because the latter but not the former involves an approved amendment and directly calls for consideration of the meaning of s 39(7).

10. Second, all of the parties to the Kevmille proceeding are not presently before this Court. Allowing Kevmille the opportunity to put its submissions on the construction of s 39 of the Act without hearing from the other parties to its proceeding would, in the circumstances, be unfair.

11. We accept that the proposed submissions do not merely replicate those of the parties in this proceeding. Subject to questions of procedural fairness, which may need to be addressed, it may be that the parties choose to adopt as their own one or more of the submissions foreshadowed by Kevmille.

12. For these reasons the application for leave to intervene should be refused.

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SCHEDULE OF PARTIES

IGA RETAIL SERVICES PTY LTD

(ACN 002 454 686)

First applicant

SHEPPARTON PTY LTD

(ACN 620 846 184)

Second applicant

and

MINISTER FOR PLANNING

First respondent

GREATER SHEPPARTON CITY COUNCIL

Second respondent

KATHY MITCHELL AM AND PETER MARSHALL
(AS MEMBERS OF A PANEL APPOINTED BY THE MINISTER FOR PLANNING UNDER SECTION 153 OF THE PLANNING AND ENVIRONMENT ACT 1987)

Third respondent

LASCORP INVESTMENT GROUP PTY LTD

Fourth respondent

KEVMILLE PTY LTD

Proposed Intervener