John Barr Investments Pty Ltd v Mordialloc Sporting Club Inc & Anor
[2022] VSC 100
•4 March 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2018 01223
| JOHN BARR INVESTMENTS PTY LTD (ACN 005 225 274) | Appellant |
| v | |
| MORDIALLOC SPORTING CLUB INCORPORATED (ARN A0027737R) | First Respondent |
| and | |
| 528 MAIN STREET, MORDIALLOC PTY LTD (ACN 614 378 040) (as Trustee for the 528 Main Street, Mordialloc Unit Trust) | Second Respondent |
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JUDGE: | CROFT J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 March 2022 |
DATE OF JUDGMENT: | 4 March 2022 |
CASE MAY BE CITED AS: | John Barr Investments Pty Ltd v Mordialloc Sporting Club Inc & Anor |
MEDIUM NEUTRAL CITATION: | [2022] VSC 100 |
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PRACTICE AND PROCEDURE – Appeal to the Trial Division of the Supreme Court of Victoria from the Victorian Civil and Administrative Tribunal – Consent orders – No error of law, jurisdictional or otherwise, for the purpose of any appeal – McVey v St Vincent’s Hospital (Melbourne) Ltd [2005] VSCA 233 – Director of Housing v Sudi (2011) 33 VR 559 (CA) – Muto v Secretary to the Department of Planning and Community Development [2013] VSCA 85 – AGL Loy Yang Pty Ltd v Department Head, Department of Economic Development, Jobs, Transport and Resources [2016] VCAT 1249 – The Big Apple Group Pty Ltd v Melbourne City Council [2020] VSC 393 – Rysze International Pty Ltd v Yong [2021] VSC 786 – Victorian Civil and Administrative Tribunal Act 1998, ss 93(1) and 148.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant (Appellant) | Mr T. North QC with Mr D. O’Brien and Mrs O. Callahan | McDonald Slater & Lay |
| For the First Respondent | Dr A. Hanak QC with Dr E. Kelly | Fitzpatrick Legal |
| For the Second Respondent | Mr S. Horgan QC with Mr N. Frenkel | HWL Ebsworth |
HIS HONOUR:
Introduction and background
This proceeding is brought pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (“the VCAT Act”). The applicant, John Barr Investments Pty Ltd (ACN 005 225 274) (“JBI”), seeks leave to appeal the Orders of Senior Member M. Lothian of the Victorian Civil and Administrative Tribunal (“VCAT” or “the Tribunal”) made on 18 December 2017 in VCAT proceeding number BP 647/2017.
The Tribunal neither published nor pronounced any reasons for the making of these Orders, which were made by consent. The application for these Orders by consent was made by all relevant parties to the VCAT proceedings, namely, the appellant and the now first respondent, Mordialloc Sporting Club Incorporated (ARN A0027737R) (“Sporting Club”), both of which were represented before the Tribunal.
The terms of the consent orders are as follows:
1.It is declared that the applicant has validly exercised the option of purchasing all of the respondent’s right title and interest in the freehold of the land described in certificate of title volume 8638 folio 604, volume 7819 folio 046, volume 5787 384, volume 4135 folio 844 and volume 9096 folio 955, known as 528 Main Street, Mordialloc, Victoria (Land) pursuant to clause 46 of the lease between the parties by notice from the applicant to the respondent dated 16 January 2017.
2.The counterclaim of the Respondent is dismissed.
(”VCAT Consent Orders”)
The appellant, JBI, makes application for leave to appeal against the whole of the VCAT Consent Orders.
The second respondent, 528 Main Street, Mordialloc Pty Ltd (ACN 614 378 040) (as Trustee for the 528 Main Street, Mordialloc Unit Trust) (“528 Main Street”), was joined to the proceeding pursuant to orders by Randall AsJ on 11 May 2021. These orders were subject to conditions, the terms of which are not presently relevant.
Principles applicable with respect to appeals
Section 148(1) of the VCAT Act provides:
A party to a proceeding may appeal on a question of law from an order of the Tribunal in the proceeding—
(a)if the Tribunal was constituted for the purpose of making the order by the President or a Vice President, whether with or without others, to the Court of Appeal with leave of the Court of Appeal; or
…
(b)in any other case, to the Trial Division of the Supreme Court with leave of the Trial Division.
It follows from this provision that any appeal is dependent upon two important qualifications. First, that the appeal be on a question of law, and secondly, that the Court gives leave to appeal. The legislative policy underlying these provisions is that “VCAT decisions should not generally be disturbed where cases have been decided in that forum other than on questions of law and where there is something about the decision bearing upon the question of law which warrants a grant of leave to appeal”.[1] It follows that “[t]his Court is not entitled to enter into the fact finding exercise which the legislature has deliberately entrusted to a specialist tribunal”.[2]
[1]Commissioner of State Revenue v Frost (2011) 83 ATR 832 at 834 [5] citing Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331 at 335–6 and Myers v Medical Practitioners’ Board (Vic) (2007) 18 VR 48 at 55–6 [28].
[2]Boucher v Dandenong Ranges Steiner School Inc (2005) 145 LGERA 21 at 26 [15] citing Spurling v Development Underwriting (Vic) Pty Ltd [1973] VR 1 and Whitehorse City Council v Golden Ridge Investments Pty Ltd (2005) 13 VR 275.
The leave requirement under s 148(1) of the VCAT Act is designed to maintain this position. As Pagone J said in Commissioner of State Revenue v Frost:[3]
The requirement for leave under s 148(1) of the [VCAT Act] “is a safeguard that the appeal is on a pure question of law and that the grounds supporting the question of law articulated for determination by the court do found the subject matter of the appeal”.[4] It also confers a discretion about whether to grant leave[5] which an applicant must persuade the court to exercise in its favour. What must be shown will depend upon the particular case bearing in mind the statutory criteria being a grant of leave and not special leave.[6] It will ordinarily be necessary (in addition to a clearly articulated question of law)[7] for an applicant to make out a prima facie case[8] and in an appropriate case it may be necessary for the applicant to show that the question upon which leave is sought has public or general importance.[9]
[3](2011) 83 ATR 832 at 833–4 [3].
[4]Commissioner of State Revenue (Vic) v STIC Australia Pty Ltd (2010) 2010 ATC 20-232 at 11,839 [10];
81 ATR 682 at 687 [10] per Davies J.
[5]Department of Premier and Cabinet v Hulls [1999] 3 VR 331; Al-Hakim v Monash University (unreported, Court of Appeal, Vic, No 3707 of 2003, 28 March 2003); Myers v Medical Practitioners Board (Vic) (2007) 18 VR 48.
[6]See Morris v The Queen (1987) 163 CLR 454 at 475; 61 ALJR 588 at 597; 28 A Crim R 48 at 63-64; 74 ALR 161 at 176-177 per Dawson J.
[7]Osland v Secretary to the Department of Justice [No 2] (2010) 241 CLR 320 at 333 [21]; 84 ALJR 528 at 536 [21]; 267 ALR 231 at 240 [21] per French CJ, Gummow and Bell JJ.
[8]Morris v The Queen (1987) 163 CLR 454 at 475; 61 ALJR 588 at 597; 28 A Crim R 48 at 63-64; 74 ALR 161 at 176-177 per Dawson J; Department of Premier and Cabinet v Hulls [1999] 3 VR 331 at 335 [10]; 15 VAR 360 at 366 [10].
[9]Department of Premier and Cabinet v Hulls [1999] 3 VR 331 at 335-336 [11]; 15 VAR 360 at 366 [11] per Phillips JA; Commissioner of State Revenue v Challenger Property Nominees Pty Ltd (2006) 63 ATR 65 at 69 [20] and 77 [65] per Hollingworth J.
An additional safeguard has since been imposed. Effective from 1 May 2018, the VCAT Act was amended to include s 148(2A).[10] The section provides:
The Trial Division of the Supreme Court may grant an application for leave to appeal under this section only if it is satisfied that the appeal has a real prospect of success.
[10] Justice Legislation Amendment (Court Security, Juries and Other Matters) Act 2017, s 31(3).
This amendment sees the replacement of the requirement that an applicant seeking leave to appeal from VCAT to the trial division of the Supreme Court must show that there is a real or significant argument to be put that an error below exists,[11] sometimes referred to as the Hulls test.[12] Instead, all applicants under s 148 are now subject to the same and more burdensome requirement: they must demonstrate that the appeal has a real prospect of success.[13] With respect to applications subject to the same test,[14] the Court of Appeal has said:[15]
the test under s 63 of the Civil Procedure Act should be construed as one of whether the respondent to the application for summary judgment has a “real“ as opposed to a “fanciful“ chance of success; that the “real chance of success“ test is to some degree a more liberal test than the “hopeless“ or “bound to fail” test; and that, as the law is at present understood, the real chance of success test permits of the possibility that there may be cases, yet to be identified, in which it appears that, although the respondent’s case is not “hopeless“ or “bound to fail”, it does not have a real prospect of succeeding.
[11]Myers v Medical Practitioners’ Board of Victoria (2007) 18 VR 48 at 55 [28], citing Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331 at 335.
[12]See Emrys Nekvapil, Pizer’s Annotated VCAT Act (Thomson Reuters, 7th ed, 2020), p 893 [VCAT.148.160].
[13]The same requirement is imposed upon applicants for leave to appeal a VCAT decision before the Court of Appeal under s 148(1)(a) of the VCAT, with the additional requirement to such an application set out at s 14C of the Supreme Court Act 1986; see Emrys Nekvapil, Pizer’s Annotated VCAT Act (Thomson Reuters, 7th ed, 2020), p 893-7 [VCAT.148.160].
[14]Section 63(1) of the Civil Procedure Act 2010 empowers a court to give summary judgment in a civil proceeding if the defence, inter alia, has “no real prospect of success”.
[15]Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27 at 39 [29]. See also Kennedy v Shire of Campaspe [2005] VSCA 47, [3]–[14].
The new requirement of s 148(2A) makes express the restraint this Court ought exercise when reviewing decisions of VCAT, a restraint long and more generally recognised in case authority. In considering applications of this nature, courts have been concerned to respect the role entrusted by the legislature to the particular tribunal and not, in effect, subvert this position by seeking out error. Thus, Kirby J in Roncevich v Repatriation Commission said:[16]
[16](2005) 222 CLR 115 at 136 [64].
Courts conducting this form of review have been repeatedly enjoined by this Court to avoid overly pernickety examination of the reasons.[17] The focus of attention is on the substance of the decision and whether it has addressed the “real issue” presented by the contest between the parties.
Similarly, in Vegas Nominees Pty Ltd v Werribee Sports & Community Club Inc, Ashley J said:[18]
This Court has said more than once that it should not examine briefly stated reasons by an expert Tribunal in an over-legalistic manner or by the over-zealous drawing of inferences in order to disclose some supposed error; although where unambiguous language is used, the user should be taken to mean what the words say. I should add that the Court is not entitled to interfere with the Tribunal’s decision unless it is satisfied that there was in fact a vitiating error of law. It is not enough for the appellant to show that the Tribunal’s reasons for its decision are so expressed as to suggest the possibility that it proceeded upon a wrong view of the law. In support of the several propositions that I have just stated I refer to Portland Properties Pty Ltd v Melbourne & Metropolitan Board of Works,[19] Michaelis Bayley (Vic) Pty Ltd v Melbourne & Metropolitan Board of Works[20] and Teston Investments Pty Ltd v Melbourne & Metropolitan Board of Works.[21]
Additionally, “[o]n appeal this Court must recognise the forensic realities of the way in which the case was put to the Tribunal. It is these realities to which a Tribunal must respond in its reasons”.[22]
[17]Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 575, 597; cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 348 [74].
[18](Supreme Court of Victoria, Ashley J, 21 December 1994) at 13.
[19](1971) 38 LGRA 6 at 18.
[20](1980) 44 LGRA 65 at 67–8.
[21](1985) 62 LGRA 346 at 349–50.
[22]The Gombac Group Pty Ltd v Vero Insurance Ltd [2005] VSC 442, [59].
In terms of the parties’ submissions, it is clear from the authorities to which reference has been made that the role of a specialist tribunal, such as VCAT, is not to be usurped by the Court and that a decision of such a tribunal is not to be interfered with absent a vitiating error of law.[23]
[23]And see Rysze International Pty Ltd v Yong [2021] VSC 786.
Moreover, the authorities also indicate and emphasise that it is not the function of the Court on an application under s 148 of the VCAT Act to substitute its own views on the evidence which is before the Tribunal, its relevance, significance and inferences which might be drawn from it.[24] Thus, the Court of Appeal in Hoskin v Greater Bendigo City Council[25] said, with respect to an appeal pursuant to s 148 of the VCAT Act:[26]
9.Such an appeal is limited to an appeal on questions of law.[27]
10.It is not open to this Court to entertain further debate as to the merits of the Tribunal’s decision on the facts. It is only if a conclusion on the facts was not open to it that an error with respect to factual matters will involve a question of law.[28]
11.This Court’s function is limited to the exercise of a supervisory jurisdiction intended to ensure that the merits review which the Tribunal carried out was undertaken in accordance with its statutory obligations.
[24]See Rysze International Pty Ltd v Yong [2021] VSC 786.
[25](2015) 48 VR 715.
[26](2015) 48 VR 715 at 720, [9]-[11]; and see Karakatsanis v Racing Victoria Ltd (2013) 42 VR 176 at 6, [22] (CA); Cosmopolitan Hotel (Vic) Pty Ltd v Crown Melbourne Ltd (2014) 45 VR 771 at 782, [41] and 805, [162], [165](CA); and Maund v Racing Victoria Ltd [2016] VSCA 132 at [67].
[27]Transport Accident Commission v Hoffman [1989] VR 197, 199; Myers v Medical Practitioners’ Board of Victoria (2007) 18 VR 48, 59 [44].
[28]S v Crimes Compensation Tribunal [1998] 1 VR 83, 88–93; Myers v Medical Practitioners’ Board of Victoria (2007) 18 VR 48, 59 [44].
For the reasons which follow, I am not satisfied that the applicant has established any proper basis upon which leave to appeal should be granted. Moreover, as these reasons indicate, it is not appropriate to express any views in relation to the issues raised by the appellant as questions of law and grounds of appeal, other than in the most general terms with respect to one particular matter to which reference is made.
The appeal
The applicant seeks leave to appeal with respect to seven questions of law as set out in the Second Further Amended Notice of Appeal (filed pursuant to the orders made by Derham AsJ on 26 September 2019). In light of preliminary observations by the Court with respect to the position adopted by Ginnane J in The Big Apple Group Pty Ltd v Melbourne City Council[29] and related matters as to appeals from consent orders of the Tribunal, the applicant decided at the hearing of this matter to rely only on one question of law, amongst those previously articulated in the Second Further Amended Notice of Appeal, namely:
1A.Were all actions purportedly taken by the Respondent for the period of time from 2 December 2016 to 19 March 2019, void, invalid and of no effect by reason of the number of duly elected directors falling below the minimum of six persons required under the Rules and were therefore unauthorised actions of the Respondent. Such decisions included:
(a)the purported exercise of the Option to Purchase the Land;
(b)the purported entry into the On-Sale Agreement on 22 December 2016 and subsequent Deeds of Variation;
(c)the instructions to commence the VCAT Application and all subsequent steps taken in the VCAT Application including the obtaining of the VCAT Consent Orders?
[29][2020] VSC 393.
Grounds of appeal
The grounds of appeal are set out at length in the Second Further Amended Notice of Appeal, but for the reasons indicated it is not necessary to make particular reference to those grounds.
Applicable principles
As is clear from the authorities to which reference has been made, the jurisdiction of the Court to entertain an appeal from the Tribunal under s 148 of the VCAT Act is only enlivened with respect to a question or questions of law. The s 148 appeal mechanism is not something in the nature of a merits appeal and it does not permit the Court to transcend the role of VCAT by entering into a process of primary findings of fact and law as part of the appeal process. In my view, this is exactly what the appellant, JBI, is inviting the Court to do in this proceeding. This is particularly so having regard to the position that none of the matters raised in the Second Further Amended Notice of Appeal were canvassed before the Tribunal and, consequently, were never argued before the Tribunal or the subject of any determination by the Tribunal. The orders appealed from followed what are best described as mere procedural hearings addressing general procedural matters which would have been preliminary to a hearing and determination by the Tribunal.[30] In order to overcome the difficulty of seeking to identify an error of law in proceedings before the Tribunal where there has been no determination of anything relevant prior to the making of the consent orders, the appellant sought to argue that there was no consent of the parties upon which these orders could be founded. In this respect, it is contended, the Sporting Club lacked a validly constituted Board of Directors at the time and, therefore, could not consent on behalf of that corporate body, nor instruct a representative to do so. Again, this is not a matter that was raised before VCAT.
[30]See transcript of VCAT proceedings (5 December 2017 and 18 December 2017).
The Tribunal derives its authority to make the Consent Orders from s 93(1) of the VCAT Act. Section 93, which is contained within Part 4 of Division 5 which is titled ‘Compulsory Conferences, Mediation and Settlement’, states:
(1)If the parties agree to settle a proceeding or any part of it at any time, the Tribunal may make any orders necessary to give effect to the settlement.
(2)The Tribunal’s power to make an order under subsection (1) is exercisable by any member including, if the settlement is achieved through mediation conducted by a member, that member.
(3)If the parties agree to settle a proceeding or any part of it at a compulsory conference at which the principal registrar is presiding, the principal registrar may exercise the Tribunal’s powers to make orders under subsection (1).
(4)If the parties agree to settle a proceeding or any part of it at a compulsory conference at which a person nominated under section 83(1)(c) or clause 52(3) of Schedule 1 is presiding–
(a)the Tribunal may make any orders under subsection (1); or
(b)the principal registrar may exercise the Tribunal’s power to make any orders under subsection (1).
In The Big Apple Group Pty Ltd v Melbourne City Council,[31] the appellant submitted:
… that the word “if” at the beginning of s 93(1) has the effect that the availability of the power to make orders under the sub-section is contingent upon the existence of an agreement by the parties to settle the proceeding. Without such an agreement, an essential prerequisite for the enlivening of s 93(1) is absent and the Tribunal lacks the power to make necessary orders to give effect to the settlement. In short, the existence of an agreement to settle is a jurisdictional fact for the exercise of the power conferred by s 93(1).[32]
[31][2020] VSC 393.
[32]The Big Apple Group Pty Ltd v Melbourne City Council [2020] VSC 393, [17].
In the Big Apple case, there was an issue as to whether the Tribunal could conduct a collateral review of consent orders already made, but that is not an issue in the present proceedings. Putting aside that issue in the Big Apple case, Ginnane J also considered the effect of the empowering provisions of s 93 of the VCAT Act, a matter of critical importance in the present proceeding. His Honour said:
39.It was not disputed that at the time the Senior Member made the Consent Orders, the parties requested him to do so and did so on the basis that they had agreed to settle the Proceeding. That is why the orders are headed ‘Orders by Consent’. In my opinion, the Senior Member was able to act on the basis that the parties had agreed to settle the proceeding and therefore he had power to make the Consent Orders under s 93(1). …
…
44.If the Big Apple’s construction of s 93 were accepted, the Tribunal would have to conduct an inquiry or investigation into whether the settlement agreement was genuinely formed. This ‘trial within a trial’, to adopt Warren CJ’s description in Sudi, is inconsistent with the legislature’s intention for the Tribunal to be a speedy and inexpensive forum for dispute resolution.
45.The Big Apple’s submissions would also mean that Consent Orders made under s 93(1) would always be conditional and cease to have any effect if the parties’ agreement was later found to have been induced by fraud or misrepresentation or mistake or misunderstanding. This outcome would affect the finality of Tribunal orders and the capacity to give immediate and permanent effect to them.
46.The right of a party to seek leave to appeal under s 148 against orders, including those made under s 93, is a further significant matter supporting the Senior Member’s conclusion. A party aggrieved by s 93 orders can seek to appeal to this Court and if required, can seek an extension of time. Alternatively it can commence a separate proceeding seeking to set aside the agreement.[33]
[33]Cf Clone Pty Ltd v Players Pty Ltd (in liq) (recs & mgrs apptd) (2018) 264 CLR 165.
47.As the Council submitted, to accept the Big Apple’s case that the Tribunal could undertake a collateral review of a previous order, would require inserting words into s 93(1) to the effect of:
If the Tribunal is satisfied that the parties agree to settle a proceeding or any part of it at any time, the Tribunal may make any orders necessary to give effect to the settlement;
48.Parliament’s choice of words in s 93, when read as part of the VCAT procedures established by the VCAT Act, make clear that VCAT has neither power nor obligation to inquire into whether the parties had reached agreement enlivening s 93(1), when they inform the Tribunal that they have. Section 93(1) enlivens the jurisdiction of the Tribunal when parties inform it that they have agreed to settle the dispute and consent to the making of orders to give effect to the settlement.
For the reasons which follow, I do respectfully adopt the reasoning if Ginnane J and his analysis in this respect in the Big Apple case.
It would seem that the extent to it which might be contended that VCAT should make enquiries in relation to consent orders with effect to a settlement have not been the subject of many decisions. Reference was, in the course of these proceedings, made to the decision in AGL Loy Yang Pty Ltd v Department Head, Department of Economic Development, Jobs Transport and Resources[34] for the proposition quoted in Piser’s Annotated VCAT Act[35] that VCAT ‘must therefore carefully identify who are actually the parties to the proceeding whose consent is required, and be satisfied that there was an agreement between those parties to settle a proceeding’.[36] It was, on this basis, submitted by the first respondent and, as I infer, adopted by the appellant, that VCAT had, in the present context, failed to ‘identify who are actually the parties’ in that it did not identify by some unspecified process of enquiry that there was alleged to be a defect in the appointment of the Sporting Club Board of Directors. In my view, there was no force in this submission and it rather oversimplifies the reasoning of the Tribunal in the AGL Loy Yang decision, to which I now turn.
[34][2016] VCAT 1249.
[35]Emrys Nekvapil, Pizer’s Annotated VCAT Act (Thomson Reuters, 7th ed, 2020), p 445 [VCAT.93.40].
[36]AGL Loy Yang Pty Ltd v Department Head, Department of Economic Development, Jobs, Transport and Resources [2016] VCAT 1249, [16].
In the AGL Loy Yang decision, Deputy President Dwyer, as did Ginnane J in the Big Apple case, emphasised that in making consent orders it is primarily exercising a power under s 93 of the VCAT Act. In my view, this is an important consideration, as on this analysis the statutory power, though it may be dependent upon certain preconditions, is a power which does not rely upon the position of the parties, in the sense that the power itself is not one conferred by party agreement. A precondition to its exercise is party consent, but this is not the basis of the statutory power. Consequently, this is not a situation where consideration has been given to the application of the inherent powers and jurisdiction of a superior court to make orders by consent to facilitate a settlement. Against this background, it is helpful to set out some of the reasoning in the decision of Deputy President Dwyer:[37]
[37]AGL Loy Yang Pty Ltd v Department Head, Department of Economic Development, Jobs, Transport and Resources [2016] VCAT 1249, [15]-[27].
15.In Muto v Department of Planning and Community Development,[38] the Court of Appeal noted that the VCAT Act attempts to encourage a variety of forms of dispute resolution, including compulsory conferences in mediation, and the purpose of s 93 was to facilitate settlement proceedings. The Court of Appeal indicated that the power in s 93 of the VCAT Act would have been expressed more restrictively if it were intended to confine its operation only to the settlement of disputes between private individuals. It follows that s 93 also applies to the settlement of review proceedings.
[38][2013] VSCA 85.
16.Section 93 refers to a circumstance where the ‘parties agree to settle a proceeding’. VCAT must therefore carefully identify who are actually the parties to the proceeding whose consent is required, and be satisfied that there is an agreement between those parties to settle the proceeding.
17.Section 93 also empowers VCAT to make ‘any orders necessary to give effect to the settlement’. The ‘necessary orders’ that VCAT might make to give effect to a settlement in a review proceeding will commonly require it to make a consequential order (albeit by consent) under s 51(2) of the VCAT Act to affirm, vary, or set aside and substitute the decision under review.
18.However, in making consent orders to give effect to a settlement in a review proceeding, VCAT is primarily exercising the power under s 93 of the VCAT Act. It is not formally determining the application on its merits pursuant to the enabling enactment that gave rise to the decision under review, but rather it is considering the appropriateness and efficacy of the settlement as a matter of justice. Nor is the VCAT member who makes the consent order taking responsibility for the merits outcome in the same way as if he or she had fully and independently considered the matter and given a reasoned decision. As s 93 expressly states, the orders are to give effect to a settlement agreed by the parties. The very nature of the agreed settlement is that it is avoiding a merits decision being independently considered and imposed by VCAT.
19.In Muto, the Court of Appeal considered that the orders properly made under s 93 were based solely on the settlement reached by the parties. The Tribunal, howsoever constituted, needed to be satisfied of the efficacy of the settlement. Where the issues involved in the proceeding involved more than mere private rights and interests, it may involve the Tribunal being satisfied of the propriety and efficacy of the orders as a matter of public interest. However, this is in reality no different from the general responsibility of any court or tribunal to exercise its judgement in order to determine whether a settlement was appropriate as a matter of justice and, therefore, whether to make the order suggested to give it effect. [The case in Muto concerned a local government disciplinary matter, and the constitution of the Tribunal, but similar ‘public interest’ considerations will also arise as in many review proceedings.]
20.This position is broadly consistent with other recent judicial opinion in relation to consent orders in a court, albeit not directly arising in relation to s 93 of the VCAT Act or a review proceeding. It has been held that, although a consent order may be given the same legal effect as an order made after a hearing in the court, this does not impute any finding to the court. There is no finding of fact or law by the court that resolves the controversy between the parties. Where a consent order reflects an agreement of the parties in circumstances where no exercise of judicial power is required to determine the terms of the agreement, it is the agreement of the parties that settles the terms, and the consent order merely facilitates the enforcement of the compromise.[39]
21.To take a different view in relation to a VCAT review proceeding would effectively require a hearing by default, before any consent order could be made, with all of the associated costs and delays for the parties, and resource implications for the justice system. This would run contrary to the purpose and intent of s 93. It would be contrary to the purpose and objectives of VCAT in providing a forum for timely and cost-effective dispute resolution, including the use of mediation and compulsory conferences to promote a settlement between the parties.
22.I have indicated above that a potential difference between the settlement of a civil dispute and the settlement of review proceedings is that a decision under review will often involve matters of a public character. It has been suggested by some commentators that, in making a consent order in a review proceeding, VCAT must still be satisfied that the decision agreed to by the parties is the ‘correct or preferable decision’ under established principles applying to merits review proceedings. I do not disagree with this proposition, provided it is seen in its proper context, and that it is not seen to reinstate, by default, a requirement that VCAT must consider and determine the merits of the proceeding, or examine all of the issues in detail, in order to give effect to a settlement.
23.The key authorities for the proposition that a tribunal in a review proceeding has the function of making the ‘correct or preferable decision’ ordinarily relate to decisions following a hearing, with the tribunal’s underlying task being to reach the correct or preferable decision ‘on the material before it’.[40] In a planning context (albeit a little different to the MRSD Act context here), it has been suggested that VCAT is entitled to grant a statutory approval where it is satisfied that the approval will result in a reasonably acceptable outcome having regard to the matters relevant to its decision.[41] VCAT need not search for the ideal outcome.
24.The power under s 93 of the VCAT Act is discretionary. However, in considering whether a proposed consent order is a preferable decision comprising one of acceptable outcomes, it is highly relevant that the agreement reflects and promotes a settlement that is obviously acceptable to the parties. In a review proceeding, where the public decision-maker whose decision is under review is a consenting party to the settlement, VCAT can also reasonably assume that the decision-maker, in giving its consent, has had appropriate regard to all of the relevant matters it was required to consider under the enabling enactment (including relevant matters of a ‘public’ character) and that the consent position is in conformity with the relevant regulatory regime administered by that decision-maker.
25.In most instances, in exercising the discretion under s 93 in review proceeding, VCAT need do no more than consider whether the settlement appears to be generally satisfactory and within the range of acceptable outcomes on the material before it, having regard to the subject matter of the proceeding and the broad nature of the decision under review, and that there is nothing overtly wrong or odd about it. VCAT therefore still has an important role to play in providing a ‘check and balance’, albeit in many cases to a relatively cursory level.
26.Where the decision under review is of a public character, as is often the case in VCAT’s Planning and Environment List, VCAT may also properly consider whether the settlement has any overtly unreasonable outcomes in the public interest or for persons not party to the agreement. This is essentially the ‘flipside’ of the same consideration as to whether the settlement is within the range of acceptable outcomes. By reference to the decision in Muto, VCAT is still doing no more than considering the appropriateness and efficacy of the settlement as a matter of justice. VCAT is still considering whether to exercise a power under s 93 to give effect to a settlement, rather than itself determining the merits of the underlying decision under review or the proposed settlement.
27.If the settlement is within the broad range of acceptable outcomes on the material before it, VCAT should not lightly interfere, and it is not under any obligation to investigate or consider all elements of the matter in detail. This is the case notwithstanding that the settlement may not reflect the preferred decision of the member making the consent order had he or she separately decided the matter following a full hearing. As I have said, VCAT can commonly assume that the consenting decision-maker has (or should reasonably have) taken such matters into account in reaching the settlement.
28.It follows nonetheless that, in some cases, VCAT may exercise a discretion not to make a consent order to give effect to a settlement. VCAT is not a rubber stamp for any or all consent orders placed before it to finally resolve a proceeding.
[39]See, for example, Attwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16 per French CJ, Kiefel, Bell, Gageler and Keane JJ, following in part Newcrest Mining Ltd v Thornton [2012] HCA 60 per French CJ. It should be noted that both were civil proceedings. The decision in Atwells relied on a civil procedure rule in NSW, directly concerning consent orders, which is somewhat analogous to s 93 of the VCAT Act.
[40]Rozen v Macedon Ranges SC [2010] VSC 583, [176] per Osborn J, and the cases there cited, and Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, 589 per Bowen CJ and Deane J.
[41]Rozen, [163]–[187].
In my view, the position set out by Deputy President Dwyer in VCAT does, together with the reasoning of Ginnane J in the Big Apple case, provide an accurate and comprehensive analysis of the nature and extent of the power conferred on VCAT by s 93 and the manner in which the legislature would have expected it to be exercised. In particular, I note the statement of Deputy President Dwyer that, ‘… VCAT need do no more than consider whether the settlement appears to be generally satisfactory and within the range of acceptable outcomes on the material before it, having regard to the subject matter of the proceeding and the broad nature of the decision under review …’.[42]
[42]AGL Loy Yang Pty Ltd v Department Head, Department of Economic Development, Jobs, Transport and Resources [2016] VCAT 1249, [25].
The Deputy President continues at that point in his reasons to state that VCAT still has an important role to play in providing a ‘check and balance’, but in many cases at a relatively cursory level. In my view, if this were not the position, it would become necessary for the Tribunal, and courts in similar circumstances, to assume some kind of inquisitorial function with respect to the content and basis of an agreed settlement arrangement which the parties were putting to it. Quite apart from the extent to which this would be a departure from the general approach to civil litigation before courts and the Tribunal, it would invite more costs and delays and, in many cases, would likely involve a mini trial (or perhaps more) at odds with the nature of the Tribunal as an expert and expeditious dispute resolution forum. Clearly, where it is obvious that all necessary parties are not before or the Tribunal sees some patent defect, absurdity or manifest injustice in what is being proposed, then it would be expected that these matters would be raised with the parties. That is, however, not the position in the present proceeding, where both parties were before the Tribunal and represented. It is now said that there is some defect in the internal management of one corporate party, a defect which was not raised before the Tribunal and could not be said to be patent or obvious at the relevant time. Consequently, it is, in my view, fallacious to say that there can be a mistake of law for the purposes of s 148 of the VCAT Act where VCAT is exercising power under s 93, if it later proves to be the case that there are facts and circumstances vitiating or potentially vitiating the party consent for the purposes of s 93(1). Moreover, having regard to the nature and ambit of the statutory power under s 93, it does not follow that it can be said that there is, in this matter, at the time the consent orders were made, lack of jurisdiction arising from any claimed defect in the appointment of the Board of the Sporting Club.[43]
[43]cf Craig v The State of South Australia (1995) 184 CLR 163.
It was suggested by the appellant that, had it not been able to pursue the s 148 appeal proceedings, it would have been denied some procedural advantages, in terms of discovery, subpoenas and the like. I reject this proposition, which is, in my view, based on the false assumption that no other procedure was available to the appellant to challenge the making and operation of the consent orders. In my view, it is quite clear that separate proceedings by way of a fresh action to challenge this settlement and the application of those orders could have been taken. Indeed, this is not a novel proposition and is one which has generally been accepted from the mid-19th Century at least.[44]
[44]Seton’s Judgments and Orders (7th ed), London, 1912), pp 124-127; and see McVey v St Vincent’s Hospital (Melbourne) Ltd [2005] VSCA 233; and also Clone Pty Ltd v Players Pty Ltd (in liq) (2018) 264 CLR 165.
Conclusions
For the preceding reasons, I am of the opinion that the Tribunal has made no error of law in the exercise of its powers under s 93 of the VCAT Act for the purposes of making the consent orders. Consequently, leave to appeal is refused.
Before concluding, I should briefly note that even were I to have been of the opinion that leave should be granted, the issues raised in the questions of law set out in paragraph 1A of the Second Further Amended Notice of Appeal would have the effect of requiring the Court to undertake its own evidence gathering and determination of questions of law in a manner which would be to usurp the functions of VCAT and to be beyond the limits of the jurisdiction conferred on the Court by s 148 of the VCAT Act, as the authorities to which reference has been made indicate. Moreover there is not, in my view, any public interest in granting leave in these circumstances. Rather, even if leave were granted only with respect to the asserted error of law now relied upon, the contrary would be the case as it would, as indicated, be at odds with the role of VCAT under the VCAT Act.
Orders
The parties are to bring orders to give effect to these reasons.
I reserve the question of costs and will hear the parties on this issue.
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